Defence Of Criminal Law

Task 2
When convicted of murder, it leads to a mandatory life sentence. However if the defendant is charged with murder but can successfully rely on one of the two partial defences to murder, their crime can be reduced to voluntary manslaughter. Voluntary manslaughter is where a partial defence to murder is successfully pleaded. The partial defences to murder can only be raised where the defendant has been charged with murder, not any other charge including involuntary manslaughter. The two partial defences to murder are; loss of control and diminished responsibility. A defendant is convicted of voluntary manslaughter if he/she had the full mens rea of the killing along with the actus reus but during the time of the killing they had a reason to do so which makes it partially excusable. If a plea is successful of voluntary manslaughter, the court can impose a sentence they feel appropriate to the circumstances instead of giving a charge of mandatory life sentence the defendant would have had if he/she was convicted of murder. The Coroners and Justice Act 2009 sets out the two partial defences. The new defence’s came into effect on the 4th October 2010. This replaced the old defences of provocation and diminished responsibility but the new defences still follow the old legal principles. The most important changes that were bought about by the legislation were:
The abolition of the partial defence to murder of provocation and the repealing of s3 Homicide Act 1957 (HA 1957)
The replacement of provocation with a new partial defence to murder called loss of control.
Amending the law on diminished responsibility, as laid down by s2 HA 1957 1
These new rules only apply to murderers after the 4th of October 2010, for murderers convicted before that date, the old rules still apply.
The first of the two defences of murder is loss of control. This is what replaced the common law defence of provocation. The previous partial defence of provocation has elements that are common to the new partial defence of loss of self-control. It had 3 elements that needed to be present for a successful plea of provocation:
There must have been something said or done that was provocative – this was criticised as being too broad because there wasn’t a requirement of how bad something was said or done.
The provocative conduct must have caused the defendant to lose his self-control – in the case Richens 1993 it was said that loss of control is where the defendant cannot restrain himself, not completely losing his self – control. Another requirement of loss of self-control was that it had to be ‘sudden and temporary’. The idea of this defence was that people who killed for revenge would be convicted of murder and meant that it was difficult to be successful in the plea of provocation if there was a cooling off period between the act of provocation and the killing. It was especially difficult for women who killed their abusive partners. This was shown in Ahluwahlia 1992:
“The defendant who was a victim of long-term abuse from her husband, failed in her attempt to use the defence. The Court of Appeal held that the longer the time-gap, the less likely it is that the jury will believe that the defendant lost self-control. The court did recognize the possibility of a ‘slow burn’ reaction to provocation, where the defendant snaps at a later point in time/ the requirement was still that the defendant suffered from a sudden and temporary loss of self-control at the time of the killing.”2

Was the provocation enough to make a reasonable person do as the defendant did? – Most commentators though that by using the words “a reasonable person”, that this could now have created an objective test. It can be divided into two questions; (1) would the reasonable person have been provoked by what was said or done? (2) Would a reasonable person have lost his self-control and done what the defendant did? This proved to be controversial over the years and lead to the defence

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