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Police Law 11th Edition

30. Homicide and Abortion

Chapter 30

Defence of loss of control p 880

Insert the above heading and the following text after the third paragraph on p 880.

With effect from 4 October 2010, C&JA 2009, ss 54 and 55 replaces the partial defence of provocation with a partial defence to murder of loss of control.

C&JA 2009, s 54(1) provides:

‘Where a person ("D") kills or is a party to the killing of another ("V"), D is not to be convicted of murder if:

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

A person who, but for the defence of loss of control, would be liable to be convicted of murder is liable instead to be convicted of manslaughter (C&JA 2009, s 54(7)).

The fact that one party to a killing is by virtue of the defence of loss of control not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it (C&JA 2009, s 54(8)).

Under s 54(4) the defence does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

Loss of self-control By C&JA 2009, s 54(2), it does not matter whether or not the loss of self-control was sudden.

Qualifying trigger Section 54(1)(b) requires that D’s loss of self-control must have had a qualifying trigger. By s 55(2), a loss of self-control would have a qualifying trigger if s 55 (3), (4) or (5) applied, ie:

• if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person (s 55(3)); or
• if D’s loss of self-control was attributable to a thing or things done or said (or both) which-
  1. constituted circumstances of an extremely grave character, and
  2. caused D to have a justifiable sense of being seriously wronged (s 55(4)); or
• if D’s loss of self-control was attributable to a combination of the matters mentioned in s 55(3) and (4) (s 55(5)).

There are two limits to the first trigger (s 55(3)):

• the fear of serious violence must be of violence from V, the person killed, and
• the fear must be of such violence to D or some other identified person.

Section 55(6)(a) provides that, in determining whether a loss of self-control had a qualifying trigger, D’s fear of serious violence must be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence.

The second trigger (s 55(4)) deals with cases of gross provocation. Section 55(6)(b) and (c)) provide that, in determining whether a loss of self-control had a qualifying trigger:

• a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence (s 55(6)(b));
• the fact that a thing done or said constituted sexual infidelity must be disregarded (s 55(6)(c)).

Objective requirement Section 54(1)(c) provides that, assuming the other two requirements are satisfied, D is not guilty of murder if a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. As can be seen this requirement is not wholly objective. It is not simply concerned with whether someone with a normal degree of tolerance and self-restraint might have reacted as D did (ie might he have reacted, and if so might he have reacted as D did?) but also whether a person of D’s sex and age (the latter in particular may be relevant to tolerance and self-restraint) and in D’s circumstances might have reacted as D did.

Not all D’s circumstances, however, can be taken into account. This is because s 54(3) provides that the reference in s 54(1)(c) to ‘the circumstances of D’ is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint’. The closing words of s 54(3) make it clear that characteristics or other circumstances whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint cannot be referred to in applying the present requirement. Thus, the fact that D was intoxicated or intolerant or irritable or excessively jealous or had problems in controlling his impulses or otherwise had impaired powers of self-control must be ignored.

Function of judge and jury Section 54(5) provides that, if sufficient evidence is adduced to raise an issue with respect to the defence under s 54(1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. For these purposes, sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.’ [C&JA 2009, s 54(6)].

Diminished responsibility p 880

Replace the last sentence of the third paragraph under this heading with the following text:

However, if the accused suffered from alcohol dependency syndrome of such an extent and nature that it constituted an abnormality of mind induced by disease or illness, the defence of diminished responsibility may be available, whether or not the accused had suffered brain damage as a result of that syndrome. [R v Wood [2008] EWCA Crim 1305] Whether the accused was suffering from an abnormality of mind at the time of the killing depends on the jury's findings about the nature and extent of the syndrome and whether, looking at the matter broadly, the defendant's consumption of alcohol before the killing was fairly to be regarded as the involuntary result of an irresistible craving for drink. [R v Stewart [2009] EWCA Crim 593]

Add after the last paragraph under the above heading:

Where a defence of diminished responsibility is based on alcohol dependency syndrome amounting to an abnormality of mind due to disease or illness at the time of the killing, the answer to the question whether his mental responsibility was substantially impaired (see the last paragraph under the above heading) will depend on the extent and seriousness of the accused's dependency on alcohol; the extent to which his ability to control his drinking was reduced; whether he was capable of abstinence from alcohol, and if so for how long; and whether he was choosing for some particular reason to get drink, or to drink more than usual. [R v Stewart [2009] EWCA Crim 593]

Then add the following text.

‘C&JA 2009, s 52 prospectively replaces the requirements of the partial defence of diminished responsibility.

Requirements of the defence of diminished responsibility as prospectively amended

The Coroners and Justice Act 2009, s 52 provides that the Homicide Act 1957, s 2(1) is substituted by s 2(1), (1A) and (1B). Section 2(1), (1A) provide:

'(1) A person ("D") who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which-

1. arose from a recognised medical condition,
2. substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and
3. provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are -

1. to understand the nature of D’s conduct;
2. to form a rational judgment;
3. to exercise self-control.’

By HA 1957, s 2(1B), ‘an abnormality of mental functioning provides an explanation for D’s conduct if it causes, or is a significant contributory factor in causing, D to carry out that conduct’. This means that abnormality of mental functioning need not be the sole cause of the defendant’s conduct. Thus, for example, the fact that other explanations or causes were also operative does not in itself negative the defence of diminished responsibility.’

Aiding and abetting suicide p 881

Insert the following text after the third paragraph under this heading.

‘The Coroners and Justice Act 2009 (C&JA 2009), s 59 amends the Suicide Act 1961 (SA 1961). In particular, it substitutes SA 1961, s 2(1)-(1C) for s 2(1) so as to replace the offence of aiding, abetting, counselling or procuring suicide (‘the original offence’) with that of encouraging or assisting suicide.

The new offence of encouraging or assisting suicide

As substituted, SA 1961, s 2(1) provides:

‘(1) A person ("D") commits an offence if-

1. D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and
2. D’s act was intended to encourage or assist suicide or an attempt at suicide.’

Section 2A (added by C&JA 2009, s 59) elaborates on what constitutes an ‘act capable of encouraging or assisting the suicide or attempted suicide of another person’. It provides that:

• if D arranges for D2 to do an act that is capable of encouraging or assisting the suicide or attempted suicide of another person and D2 does that act, D is also to be treated as having done it. Thus, if D tells D2 to assist in the commission of suicide by T, and D2 does so, D is treated as having done the act of assistance done by D2. Both of them can be convicted of an offence of encouraging or assisting crime. If D2 does not do as he was told by D, neither of them can be. The reason for this provision is not obvious because D can be convicted of an offence under s 2 under the rules relating to secondary liability if D2 carries out the arranged act;
• where the facts are such that an act is not capable of encouraging or assisting suicide or attempted suicide, it is to be treated as so capable:
• if the act would have been so capable had the facts been as D believed them to be at the time of the act (as where D wrongly believes that the harmless drugs which he supplies to assist another’s suicide are lethal); or
• had subsequent events happened in the manner D believed they would happen (as where D posts a lethal drug to another to assist the other’s suicide but this is lost in the post); or
• both;
• a reference to a person (P) doing an act that is capable of encouraging the suicide or attempted suicide of another person includes a reference to P doing so by threatening another person or otherwise putting pressure on another person to commit or attempt suicide.

Section 2B (added by C&JA 2009, s 59) provides that a reference to an act in the Suicide Act 1961 ‘includes a reference to a course of conduct, and a reference to doing an act is to be read accordingly.’

Section 2(1A) (as substituted) provides that the person referred to in the SA 1961, s 2(1)(a) need not be a specific person (or class of persons) known to, or identified by, D. Thus, provided the necessary mens rea can be proved, a person who posts information about how to commit suicide to a suicide chat room may be convicted of the present offence. By s 2(1B) (as substituted), D may commit an offence under s 2 whether or not a suicide, or an attempt at suicide, occurs; it may be difficult, for example, in the case of information posted to a suicide chat room to prove that any reader committed suicide or attempted to do so.

A prosecution for the new offence requires the DPP’s consent.

Information service providers In order to ensure that SA 1961, s 2 (as amended) is compatible with the UK’s obligations under the EU’s E-Commerce Directive, Sch 12 to C&JA 2000 makes special provision in connection with the operation of the SA 1961 (as amended) in relation to persons providing "information society services", otherwise known as "service providers".’

Killing by gross negligence p 882

Where a person (D) has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to have known, has become life-threatening to another person (eg giving a controlled drug to a person who overdoses, as D realises) a duty of care arises. [Evans (Gemma) [2009] EWCA Crim 650]

INFANTICIDE p 885

With effect from 4 October 2010, C&JA 2009,s 57 amends the offence of infanticide so that it will apply where a woman by any wilful act or omission causes the death of her child being a child under the age of 12 months, but at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, if the circumstances were such that but for the Infanticide Act 1938 the offence would have amounted to murder or manslaughter.

C&JA 2009, s 57 also amends the defence of infanticide so that, where, at a trial of a woman for the murder of her child, being a child under the age of twelve months, the jury are of opinion that she by any wilful act or omission caused its death, but that at the time of the act or omission the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child, then the jury may if the circumstances were such that but for the provisions of this Act they might have returned a verdict of murder or manslaughter, return in lieu thereof a verdict of infanticide.

CAUSING OR ALLOWING DEATH OF A CHILD OR VULNERABLE ADULT p 886

Add at end of text under this heading:

The Court of Appeal has emphasised that, even if the accused had the awareness or foresight specified in (d)(i) and (iii), or ought to have had it, the accused cannot be convicted unless he failed to take the steps which could reasonably be expected to protect the child or vulnerable adult (d)(ii), and that this means 'reasonably expected of the accused' (taking into account his characteristics and all the circumstances).

It went on to hold that the act or conduct resulting in death must occur in circumstances the kind which were, or ought to have been, foreseen by the accused, as opposed to being identical.

The Court of Appeal added that the state of vulnerability envisaged by s 5 does not need to be longstanding. It may be short, or temporary. A fit adult may become vulnerable as a result of accident, or injury, or illness. The anticipation of a full recovery may not diminish the individual's temporary vulnerability. [R v Khan [2009] EWCA Crim 2]