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The enactment of the Coroners and Justice Act 2009
The defences under the 2009 Act are partial, which means that if successful, the conviction will be one of manslaughter instead of murder and therefore afford the judge discretion in sentencing. In absence of such defence, the judge would be enforced to pass a mandatory sentence upon Susan; that she be imprisoned for life. The defences which were originally enacted under the Homicide Act 1957 have been reformed by the 2009 Act and these will now be considered in turn.
The first possible defence that will be considered is loss of self-control. Although, as will be discussed, the new defence is very similar in nature to the former provocation defence under the 1957 Act, the previous defence of provocation is abolished under the 2009 Act (s 56).
According to section 54 of the 2009 Act, a person is not to be convicted of murder if the act (or omission) which led to the killing resulted from the defendant losing self-control, in circumstances where the loss of self-control resulted from a ‘qualifying trigger’ and a person of the defendant’s sex and age, possessing a normal degree of tolerance and self-restraint, might have acted in a similar way to the defendant. There are a number of further factors under section 54 which will be considered where appropriate below. However, the three main factors outlined above will first be considered further.
The act which resulted in the killing was that of Susan driving the car directly into her husband. There are a number of factors which lead up to this. First, Susan’s depression has caused her to have a number of negative thoughts about her relationship with her husband, but it was when she attended her husband’s place of work and overheard him speaking negative thoughts about her with one of his colleagues, that she felt that her life had become ‘pointless’. Although Susan was ‘brooding’ on what she heard, this factual context could be significant as it led to the final circumstance in which she saw him still laughing with his colleague, and she felt an ‘irresistible urge’ to drive the car at him. Thus, it was at this last moment that there was arguably a loss of self-control. For the purpose of the defence, Susan has most certainly lost self-control. Significantly, it should be noted that unlike the former defence, there is no need that the loss of control is ‘sudden’ (see R v Duffy  1 All ER 932).
For the defence to succeed, it must also be established that there was a ‘qualifying trigger’ which led to Susan losing self-control. Section 55 of the 2009 Act goes on to define a number of qualifying triggers which will satisfy the second element of the defence. The implementation of a qualifying trigger is arguably entrenched in the notion that a defence should only be available where there is a justification for the defendant’s conduct and some have argued that this must amount to a ‘provoking insult by the standards of the community’ (see Gardner and Macklem (2001), cited in Herring, 2010: 300).
The first ‘qualifying trigger’ stipulated under the 2009 Act is where the defendant’s loss of self-control was attributable to a fear of serious violence from the victim (either against the defendant or another identifiable person; s 55(3)). Although we are not aware of the background to Susan’s relationship with her husband (i.e. whether there is a history of domestic violence or abuse), it is unlikely that such information would assist in the circumstances as there is still some requirement that the loss of self-control is responsive to a fear of violence and in the circumstances it appears as though Susan’s husband was not even aware of her presence when she lost self-control. Thus, it will prove extremely difficult to argue that Susan was responding to a fear of serious violence.
Under s 55(4) of the 2009 Act, if a loss of self-control is attributable to things said or done (or both), then providing such things are considered as extremely grave and cause the defendant to have a justifiable sense of being seriously wronged, the qualifying trigger requirement will be satisfied (s 55(4)). Arguably, the factors which lead to a loss of self-control are the words stated by Susan’s husband and in particular, the fact that Susan is ‘gloomy’ and that he does not wish to spend another day with her (followed by him continuing to laugh upon his return to the office). These words are likely to impact on Susan’s mental state due to the fact that they are aimed at her depression (e.g. the provocative conduct is aimed at a personal characteristic of Susan, see Morhall  3 All ER 659). Despite this, it is doubtful as to whether these factors would be considered as ‘grave’, especially to the extent that they constitute a serious wrong against Susan, although it is up to the jury to establish these latter issues.
Alternatively, as already stated above, the issue of whether Susan has been the subject of domestic abuse is not something that has been established on the facts but if this were the case, it may be more relevant to the qualifying trigger under s 55(4) of the 2009 Act. It is not necessary that these factors immediately preceded the loss of self-control, as this is not specified within the legislation. Whether the factors outlined within the legislation are met, is of course for the jury to decide upon after appropriate direction from the judge. However, on the facts it is unlikely that this section is made out as Susan’s depressive illness appears to have been caused by her lack of work and the impact that this has had on her relationship. It is unlikely that such factors would be considered as grave to the extent that they would constitute a serious wrong against Susan and thus the ‘qualifying trigger’ is hard to establish in Susan’s case.
It should also be noted that the legislation excludes a number of factors for the purpose of establishing a ‘qualifying trigger’ under the 2009 Act (see specifically s 55(6)). Again, it is not clear on the facts, but one factor that Susan may try to argue is that her husband was flirting with his colleague (if the colleague was female) and that there may have been a suspicion of sexual infidelity. If this were the case, it would not be a ground to satisfy the ‘qualifying trigger’ element as sexual infidelity is specifically excluded under the new defence (s 55(6)(c)).
In the unlikely event that Susan is able to establish that there was a qualifying trigger which led her to lose self-control, the jury will need to consider whether a person of Susan’s age and sex, possessing a normal degree of tolerance and self-restraint, might have acted in the same way in similar circumstances. As will be discussed further in part 2, the objective element of the former defence had become increasingly subjective in nature. Thus, the original requirement under the law was that the provocative acts or words were directed at a specific characteristic of the defendant, which caused him or her to lose control. Under the former defence, it was necessary to establish that the characteristics to be attributed to the reasonable person were those which formed the grounds of the provocation (see DPP v Camplin  2 All ER 168; Morhall  3 All ER 659). Despite this, the test had become more subjective on the grounds that other characteristics could be attributed to the reasonable person, such as those that might impact upon the defendant’s ability to retain his or her self-control but such characteristics did not need to form the subject of the provocation (see Morgan Smith  4 All ER 289, and Holley  UKPC 23). In Morgan Smith, the defendant’s depression had impacted on his ability to retain his self-control and was a factor that could have been attributed to the reasonable person.
Under the 2009 Act, Susan’s depressive condition is not relevant to the jury’s consideration of whether a reasonable person would have been able to retain her self-control as it is specifically excluded by the legislation (s 54(3)). It may however, be argued that the depression was in fact the subject of the words which caused her to lose her self-control, as her husband had stated that he couldn’t stay with this ‘gloomy’ woman another day and if this is the case, it is relevant to the qualifying trigger requirement (and not the objective limb of the defence). The jury must consider what a reasonable person of Susan’s age and sex may have done in the circumstance and these are the only factors of relevance for the objective element. On the facts presented, it is questionable as to whether a reasonable person with a ‘normal degree of tolerance and self-restraint’ would have acted in a similar way in such circumstances. As discussed above, it is also questionable whether the words and conduct of Susan’s husband constitutes a qualifying trigger and therefore, it is unlikely that Susan will be able to rely on the defence of loss of control under the 2009 Act.
The most likely defence available to Susan is that of diminished responsibility (which has been amended under the Homicide Act 1957 by s 52 of the 2009 Act). Murder will be substituted for the conviction of manslaughter when the defendant who killed was suffering from an abnormality of mental functioning which resulted from a recognised mental condition that substantially impaired his or her ability to:
understand the nature of his or her conduct;
form a rational judgment, or;
exercise self-control (section 52(1A)).
The impairment must also provide an explanation for the defendant’s act in doing the killing (s 52(1)(c)); an explanation will be satisfied in cases where the abnormality of mental functioning is a significant contributory factor in causing the defendant to carry out the conduct (s 52(1)(1B)).
In essence, it is necessary that Susan obtains medical evidence to support her recognised medical condition (depression) and how it impacted on her ability to understand the nature of her conduct, to form a rational judgment, or to exercise her self-control. Herring observes that the diminished responsibility plea is successful in 90% of cases in which it is raised (Herring, 2010: 316). As established above, Susan lost self-control (due to an irresistible urge) which led to the act which killed her husband. If she is able to establish that this was due to her depression, she will satisfy the first requirement of the defence. Medical support of Susan’s condition will also be essential for establishing that the depression was a significant contributory factor in causing her to carry out the conduct (s 52(1)(1B)). The facts state that Susan’s medication had not been effective in managing her condition, suggesting that her depression (as abnormality of mental functioning) was a significant contributory factor in causing the conduct. However, she also had no concern whether she killed herself as a result of the act and this may also be evidence that her condition impaired her ability to make a rational judgment. On this basis, providing that Susan is able to obtain supportive medical evidence, it seems highly probable that she will be able to successfully plead the defence of diminished responsibility.
2. Starting with the more simple issue, it can be stated that the enactment of the 2009 Act is unlikely to have any significant implications for the advice given in relation to the defence of diminished responsibility. Herring observes that ‘it will be interesting to see if the reforms to the defence in the 2009 Coroners and Justice Act will make it harder or easier to use the defence. The amendments require that the defendant’s abnormality of mental functioning be a ‘recognised medical condition’.’ (Herring, 2010: 316). This requirement is unlikely to prove problematic for Susan as depression is a recognised medical condition. In support of this comment is the fact that the Ministry of Justice also regarded the change to the current defence as minimal, observing that they do not ‘expect any significant shifts in the numbers or types of cases which benefit from the partial defence of diminished responsibility’ (MOJ, 2008, cited in Mackay, 2010: 300-301).
The changes to the diminished responsibility plea under the 2009 Act have received some criticism, with commentators questioning whether the requirement that the defendant did not understand the nature of her conduct, is too similar to the defence of insanity under the M’Naghten Rules (see Mackay, 2010: 296). Although there are some major criticisms of the changes to the diminished responsibility defence, these are not relevant to the advice given in respect of Susan.
The 2009 Act does however, have a significant impact on the advice that was given with respect to the defence of loss of self-control. As observed in part 1, this defence was formerly the defence of provocation under the 1957 Act.
It was established that Susan’s loss of control was unlikely to fall under one of the ‘qualifying triggers’ as established under the 2009 Act. This is particularly due to the fact that the provocative conduct was not regarded as grave or as serious enough to justify a serious wrong to Susan. It should be noted that under the former defence, as observed by Norrie:
The law essentially declined to commit itself on what were good or bad reasons to be provoked. The issue of moral and political acceptability in being provoked was left to the jury. The law did not provide a standard for assessing acceptability, nor was the judge empowered to rule on the matter (Norrie, 2010: 280).
In essence, the scope of the provocation defence was extremely wide under the 1957 legislation, to the extent that the actions of others (such as a screaming baby) could be held to be provocative (see Doughty (1986) 83 Cr. App R. 319). Under the former defence it is arguable (as observed by Norrie above) that the law was not concerned with assessing the moral aspects of the provocative conduct itself, but establishing whether the acts which led to the death were performed under a loss of self-control, with the latter issue being the primary focus.
The advice to Susan, in terms of the defence of loss of self-control, would be considerably different under the scope of the former defence. As touched upon above, under the former defence, it is necessary to show that the conduct of Susan’s husband caused a ‘sudden and temporary loss of self-control, rendering [Susan] so subject to passion, as to make … her for the moment not master of [her] mind’ (R v Duffy  1 All ER 932). Despite this definition, the law has been given a much wider interpretation. Thus, in Baille  2 Cr. App R. 31 it was confirmed that ‘sudden’ does not necessarily mean an ‘immediate’ loss of self-control and that in some contexts a delay may still result in a ‘sudden’ loss of control, an example of which could be Susan’s case. Given the wider interpretation to the loss of self-control element under the former defence, particularly in the context of women who have suffered a ‘slow-burn’ or accumulative ‘provocation’ (often in the form of domestic abuse), it would not be difficult to argue that the circumstances which led to Susan’s loss of control, resulted in a sudden loss of control as the crucial factor in this case was the final ‘irresistible urge’.
It is interesting to note that when passing the 2009 Act, the Government has abandoned some of the suggestions of the Law Commission, the body responsible for proposing the reforms to the current law after undertaking an extensive review of the law concerning partial defences to murder (see Law Commission, 2004). The Law Commission had acknowledged that in many contexts there may be defendants who are worthy of using the provocation defence to reduce a charge of murder to a conviction of manslaughter, despite the fact that they may not have experienced a sudden loss of self-control. The Law Commission suggested that the loss of self-control element could be removed under the defence and that killing as a result of pre-meditated revenge should be a factor that is directly excluded under the legislation to prevent the defence being used unjustifiably (and is the case under ss. 54(4) and (6)). The reasoning for this was that judges and juries could be relied upon to make a distinction between defendants who are and who are not worthy of the defence when presented with the facts of each case. However, as acknowledged by Norrie, the Government had some hesitancy in leaving the law open in this way and has reintroduced the loss of self-control as a crucial aspect of the defence (Norrie, 2010: 287).
Another aspect of the former defence which should be considered is that relating to the objective limb of the defence. As discussed above, the previous law had significantly altered the nature of the ‘objective’ test, to the extent that it had become more and more subjective in nature. This was however, turned around in the case of Jersey v Holley  UKPC 23, in which the board of nine members of the Privy Council took the opportunity to resolve the conflict arising from previous case law which could not clarify the scope of the objective test. In that case, Lord Nicholls criticised the way that the objective test had become so subjective in nature, observing that the development of the law ‘… involves a significant relaxation of the uniform, objective standard adopted by Parliament’. In R v Karimi  EWCA Crim 14, the test was placed back into the realms of a true objective test, in which it was held that only the age and sex of the defendant were factors that could be attributed to the reasonable person in the context of the objective test. For this reason, Susan would not have been able to rely on the approach in Morgan Smith to argue that her depression had impacted on her ability to maintain self-control and that this should have been attributed to the reasonable person for the objective limb of the defence. Thus, the approach in Morgan Smith had already been overruled prior to the commencement of the 2009 Act.
Some commentators have observed (in the context of Holley) that returning to a purely subjective test ‘… is a retrograde step for those with mental conditions who kill under provocation, where the loss of self-control has been affected by the condition’ (See Whitey, 2006; 258). However, the true objective test is arguably justified as there is a need for a clear distinction between the defences of diminished responsibility and loss of self-control. By reinforcing the objective nature of the loss of self-control test, there is recognition that in cases where a medical condition (such as depression) impacts on the defendant’s ability to retain self-control, this is a relevant factor for the defence of diminished responsibility and not for the objective test under the defence of loss of self-control.
Finally, it should be noted that under the former defence, cases concerning women who have been subjected to domestic violence were particularly hard to defend as it is more difficult to argue the defence of provocation in circumstances where the fatal act is not carried out under a sudden loss of self-control. However, the law had developed in a way that stretched the loss of control requirement, permitting the defence to succeed in some cases (see Thornton (No. 1)  1 All ER 306; Thornton (No. 2)  1 WLR 1174; Ahluwalia  4 All ER 889). Norrie observes that it would be difficult to bring a successful defence under the new law in such circumstances, as the new law ‘reinstates a loss of self-control requirement’ (Norrie, 2010: 287). Thus, if Susan had been subjected to domestic abuse, she would have had a greater chance of succeeding under the previous law.
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