Murder, Diminished Responsibility, and Loss of Control

An unlawful killing can be a positive act or an omission

Turning off life support is a lawful killing

Operating to save one patient but killing another is a lawful killing

D was killed under the King’s peace.

D may have direct intent (desires V’s death) or oblique intent (V’s death is a virtual certainty and D realises this - express

Implied malice is intention to cause really serious harm and V dies

s52 Coroners and Justice Act 2009:

D was suffering from an abnormality of mental functioning from a recognised medical condition which substantially impaired D's ability to do one of three specified things and explains D’s act or omission in killing.

An abnormality of mental functioning is a state so different from that of ordinary human beings that the reasonable man would term it abnormal

The abnormality of mental functioning must be caused by a ‘recognised medical condition

Chronic depression is a recognised medical condition

Pre-menstrual tension is a recognised medical condition

Battered wives' syndrome is a recognised medical condition

Mental deficiency is a recognised medical condition

Post-natal depression is a recognised medical condition

s52(1)(b): Ds mental ability is substantially impaired if he cannot –

s52(1A): (a) understand the nature of his conduct; or (b) form a rational judgment; or (c) exercise self-control.

Substantial impairment cannot come from intoxication alone

the jury ignore the intoxication and decide whether D was substantially impaired by his medical condition

Alcoholism is a recognised medical condition

The Loss of Control

D is not in control if he has lost the ability to ‘act with considered judgement or normal powers of reasoning’ – Rafferty J in R v Jewell.

A two-hour delay between the threat and D killing V did not prevent the defence of loss of control - s54(2): it does not matter whether or not the loss of control was sudden.

Loss of control cannot be claimed where D incites the situation

D cannot claim loss of control after a delay if he acts in revenge

s55(3) D fears serious violence from V against D or another identified person.

The test is subjective - as long as D’s fear of serious violence is genuine, it does not need to be a reasonable belief.

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged.

D's father suffering from Alzheimer's and incontinence was not sufficient for D to have a justifiable sense of being seriously wronged -objective test

s55(5): a combination of s55(3) and (4).

Age and sex must be considered in the circumstances for the objective test for loss of control

Unemployment, epilepsy and depression were relevant circumstances for the objective test for loss of control

Discovering sexual infidelity alone was not a relevant circumstance for the objective test for loss of control

D's bad temper was not a relevant circumstance for the objective test for loss of control