Transcript for:
Understanding Murder and Voluntary Manslaughter

foreign hi everyone and we're looking at the substantive topic of murder and voluntary manslaughter having previously covered actus Reyes causation and in the second video men's rare so all of that that we've been looking at so far will come into play in what is our first sort of offense that we're discussing so as we move forward just to say if you find this video useful please like And subscribe but as we move on um usually I had to do some uh sort of puzzles with my class at the start feel free to pause the video and see if you know the answers to these as I just put up the answers now okay well done if you got those correct so moving into the offense murder was defined by a 17th century judge named Lord cook recently discovered that that's pronounced cook not Coke and Lord cook said in in what is a common law offense so this isn't statutory this is this has come from uh you know judge made decision in the case the actus res AR and Mr as I've put there now in the exam it's perfectly acceptable to refer to actus resin men's rare as AR and Mr there is some abbreviation allowed to some extent um the other type you might be thinking of is D for defendant which you've seen me use so far and V for victim but outside of AR Mr dnv uh you probably want to avoid using abbreviations thereafter names of statutes you should put in full first try to remember the year of the statue if you can no need to know the year of the case really I think the only point at which uh some relevance there is judicial precedent as a topic perhaps knowing which cases came first along the timeline for the practice statement but yeah no need otherwise to know the years of the cases and so anyway back into murder actus race is the unlawful killing of a reasonable creature in being and the men's rare is under the now Kings of course under the king's piece with malice a forethought Express or implied and so when you are writing about this in the exam you will need to explain what these terms mean and we're going to look at that now so just as a reminder and link to what we've previously done the the aptus Reyes the guilty app the physical element of a crime here is the killing but it's worth remembering that the killing can be done through an act or a mission so uh for example we said before in a video that if I had a gun and pointed it at somebody's head and pulled the trigger that is clearly an act of the defendant that I you know I've committed an act and it's led to the death and a mission I did see for example uh come up in an exam question for AQA once it caused some issues because people weren't fully aware that for whatever reason the missions can be we dealt with in the previous video factors rare as hell there is a duty of care arising and your failure to you know fulfill it you know by breaching it you are guilty so it could be for instance um the the case of Gibbons and Proctor given some Proctor if you remember the the mistress and the Father the father of the seven-year-old girl neglected her and she starved to death so that conceivably could be um you know the actress race of murder fulfilled through an Omission the only other exam question I was trying to think of I think it was it's a long time ago now so forgive me I don't remember the year but you possibly find it it was where there was an altercation I think it was in a pub or something like that and the uh defendant chased a person down by uh I think it was a sort of narrow pathway in a sort of beside a sort of canal or Riverway and the person fell in and they got sort of as they were trying to get out of the river got stuck or wedged between the boat and the bank and I think the person then watched them struggle and then sort of walked away and so that was arguably murder through an Omission Baptist race we didn't mention in the previous video but you may know the case that came after willing which confirmed one point of law as to you know oblique intent and the foresight of consequences test being virtually certain but it I think confirmed the point that the jury can if they fulfill that test if they feel the defendant has find the intent they can choose to find the intent they don't have to in that case was Matthews and Elaine I think it was about 2003 and the point is it's a bit of a link here maybe and this is where I think it was a a the defendant's um through this uh you know this victim um over a bridge into the river below knowing full well that the victim couldn't swim and watched him struggle sort of you know doggy paddle as best he could to the towards the riverbank they walked off without seeing him successfully reach the other side and of course he didn't unfortunately make it and he drowned and so the whole argument there is you know you could argue certainly um that um by throwing him into the river that was the act itself um certainly you could also argue couldn't you the Omission was the creation of a dangerous chain of events that they then failed to deal with so so you know this there's ways and means that going back to the AQA question when that victim I think it was was in the riverbank struggling to get out and and the defendant walks away that's the Omission that's the Omission because they've created a dangerous chain of events um so yeah an emission is a failure to act but where there is a legal duty to do so it has to be recognizing law either by common law statute so all of that stuff we've done before it's relevant here now murder is a result crime which means that obviously the result is in this instance the victim's death or victim's death uh the prosecution have to prove causation so everything we did in the previous video in relation to uh factual cause and legal cause is is relevant here and has to be proven now in most instances it might seem obvious and clear or it might be that the examiner has put in in a problem scenario possible um intervening act or there might be an issue of thin skull rule maybe the victim has an underlying health condition for example that means that their their injury well in this case their death was more more likely so you would be expected to identify that and pick that up I think it's always worth dealing with causation just just briefly in a murder exam question even if it seems straightforward um as it is one of the required elements so when might a killing not be unlawful I would ask my class can you give an example I think the one that generally I seem to get would be an issue of self-defense so that links doesn't it to a future substantive topic here which is General defenses um in other words necessity defenses um again without going into too much detail because for that defense to succeed there are broadly speaking two tests you know was the use of force necessary was the use uh sort of reasonable and proportionate to the threat not you know excessive so um it could be that if there is uh somebody like an intruder in your home I think the law is trying to tried through statute to balance it out so it's perhaps um more favorable to to homeowners now from such people but um if you had an intruder excuse me and um they were armed and there was a struggle you had with them and let's say they were armed with a you know they had a knife or something and you ended up through the struggle stabbing them and they ultimately died then yeah feasibly you're right you you know um there would be a defense I think a jury would accept uh with the evidence and it would be complete acquittal you would walk free um so a killing might not be unlawful there and of course the other instances um it mentioned King's piece which I think I do come to in in a moment but in time of War uh if you were to kill like a soldier killing an enemy combatant that would not be murder uh in that situation um so the main issue probably for murder to focus on is this reasonable creature in being part which simply means in ordinary English language a human being um it's just the language obviously uses from a very old case 17th century and you can see there I've got a picture of a sort of baby in the womb um now the law says that a fetus um you know developing baby in in the mother's womb is not considered a reasonable creature and being now why is that it's uh position the Lord takes you may or may not agree with it uh but according to the case of Attorney General's reference number three of 1994. um a child to be considered uh a reasonable creature in being in other words a human being in the eyes of the law has to have and this is a direct quote from the case an existence independent of the mother now when is it likely to have this existence the law isn't entirely clear uh in some respects but we would say certainly the child has to have been born now does that mean and this is the bit I mean you know is it completely clear does it mean the child has to have taken its first breath probably yeah does it mean the umbilical cord has to be cut again probably not so I think it's the child has to be capable of being born and have taken its first breath seems to be an existence independent of the mother now yeah I obviously asked my class do you agree with the law that a fetus is not a human being and um people you know obviously have some strong feeling one way or the other now one thing to point out in a problem scenario if you're presenting the exam if the defendant and this is what actually happened in the Attorney General's case I mentioned if the defendant injures the mother she gives birth prematurely or you know in other words to an injured child who later dies as a result of that injury okay the defendant will be liable for the child's death because the child has been born it was capable of an existence independent of the mother but we can clearly trace the issue of causation um that the injury uh that it was sustained while in the womb was was due to the defendant's actions however it was also discussed in this case and it was Lord mustill who who uh I think gave part the Judgment here transferred malice so think of it this way if there is a defendant who stabs a pregnant woman we know that he is going to he or she they are going to be liable uh for the injury to the mother now that could be um attempted murder gbh whatever um but the law weren't prepared to wasn't prepared to accept the rule of transferred malice that men's Ray rule transferring to an I think an unborn sort of child and they said there the transferee put it that way had to be in existence at the time so so no they weren't prepared to stretch the transferred malice rule that far and we're only going to deal with situations where you know um where the child is born becoming there from the eyes of the law a human being a reasonable creature would then uh you know if that child were injured would that would that then apply for liability to the defendant so something to look out for anyway uh not on the exam board syllabus for AQA I'm not aware of it being on there for OCR but I thought it was an interesting story to to raise so the picture there of the defendant if you Google uh this um law you'll find other examples too now do San bako 18 at the time repeatedly punched his 16 year old pregnant girlfriend in the stomach resulting her losing the baby now we already know that as we've just discussed it can't be murder in dealing with an unborn child because of the Attorney General's reference case number three of 1994. but there is this little known law I think dating back from 1929 called child destruction and uh in this instance the charge was dropped through deuce and bako and he was convicted instead on causing Grievous bodily harm or if you will serious harm on his girlfriend now why is that because if I put on the right hand side um you know this does carry a life sentence this law um it's seen as a rather outdated law it was more or less um you know created to deal with uh Backstreet abortions as was the case when abortion was illegal in this country in the UK but since statue David Steele MP in fact I think it was a private member's bill they brought forward the abortion that 1967 with the support of the government it's now rather outdated and it's actually for the prosecution a hard um offense to to actually prove because you know when we get to it whereas with murder the men's rare is uh in plain English an intent to kill or cause serious harm you know gbh here the prosecution have to prove well firstly the child was capable of being born but secondly that the defendant in this instance do send backho intended to kill the child not just harm it but to kill it and that is incredibly difficult to to prove with evidence because of course do some backup could simply say well look yes I intended to you know seriously harm a girlfriend but that wasn't you know anything to do with the child you could say well well hang on a minute you you repeatedly punched her in the stomach but again does it show that he specifically intended to kill the child or was he just again trying to harm the girlfriend it's very very difficult um similar in fact to uh the offensive attempted murder another non sorry another substantive topic we deal with later more broadly as attempts or incoate offenses as it's called because for attempted murder the prosecution have to prove the men's rare of the defendant having uh you know the intent to kill that's it so for murder it's intent to kill or cause serious harm but for attempted murder much like here with child destruction it's an intent to kill and that is a higher threshold a higher line with evidence to to prove so often this is why these sort of offenses can't always be proven and I've got the link there to the actual news story if you want to check it out uh also in terms of what is or rather what isn't a reasonable creature and being for murder for the actress Reyes in other words not a human being capable of being killed is a person who is legally brain dead being kept Alive by a life support machine so because they are brain dead no electrical activity in the brain they are in other words no longer living as a you know no longer a person legally speaking um an essay just as a link to the previous topic do you remember the ratio decidendi the legal reason for the decision in the case of malsharak in relation to brain dead patients and doctors it was a causation case and you may well remember that if a doctor were to switch off the life support machine of somebody who was brain dead having of course followed the usual protocol and tests and such um then that is uh you know not Breaking the Chain of causation the defendant will still be liable if they were in fact the ones that you know injured the um victim and put them there in the first place it will not be the fault of the doctor why would the law want to prosecute you know doctors who are simply trying to look out for the best interests of their patients um and so yeah that's uh something just be mindful of and what I would say is that in an exam scenario problem scenario um most times for murder questions um I'm thinking 30 marks questions here uh you know it won't perhaps in the scenario mention an unborn child or it won't mention a brain dead person it will just be clearly a human being you know by name and therefore you don't want to waste your time writing about um the the law about either points um because really you know you're under pressure as it is and you should only write what is relevant to the scenario you're presented with and so um it's a very different isn't it to GCSE where you would just write down everything perhaps that you know about murder or not what you're trying to do at a level certainly is you've got a toolkit all this legal knowledge and you're trying to pick out the relevant bits sort of analyze and comment on those so yeah um but don't not revise this because as I said um recent times they have for example slipped in an unborn child uh into a problem scenario and what would be along with someone else who's been killed and it was a case of well you know is it murder of this person and The Unborn Child and don't forget the the Attorney General's reference case number three 94. we mentioned this before but the unlawful killing of course used to be Queen's peace now in the United Kingdom the king's piece uh just as I said earlier means uh you know killing uh of an enemy in Wartime if you're a soldier would not be a Dean murder um so now we're up to the men's Raya for murder and uh the men's rare for murder is this Latin phrase malice a forethought Express or implied now with all things do try and you know um spell get the spelling as you know correct if you can certainly some cases can be challenging um but as I say I think I think to my knowledge um for AQA anyway I don't believe there's any marks for um spelling per se but it is how you effectively communicate and and so forth so yeah do try and get it right there aren't too many Latin phrases thankfully so you would in the exam write the men's rare for murder once you've done the actus and causation the men's rare for murder it's malice for the expressor implied and then as part of your analysis your AO3 marks you would then say you know Express means an implied means and in this instance we're saying Express means an intent to kill and implied means an intent to cause serious harm or gbh Grievous bodily harm uh that was Illustrated in the case of Vickers so uh I remember correctly with this case you had somebody who was breaking into I believe a a confectionary shop a sweet shop and went into the cellar and was disturbed by the occupant of the house which I think was an elderly lady and the defendant then assaulted her and kicked her in the head a few times and went away and unfortunately the victim later passed away due to those injuries and a murder charge still stood we have the death the unlawful killing of a reasonable creature that was obviously the the the elderly lady and then for the men's rare we have um an intentical serious harm at the very least and you know causation issues there aren't any because that was he was a significant cause and so forth so some scenarios to ask is the offense of murder present you may want to just pause the video to give you a chance to read these and have a look but we have firstly Dean is a lone shark who has owed money by Chang unable to pay Dean stabs Chang in the leg with a knife and tells him you'll have to pay up in three days or Worse will follow now unknown to Dean Chang is a hemophiliac um I should say in the exam I don't I don't think they probably necessarily use that term but I I did it means um essentially your blood doesn't clot like a normal person you're more likely to uh bleed out so our known to Dean chain is a hemophiliac and he later collapses and bleeds to death is Dean liable for Chang's murder so everything we've done so far on this and causation would apply um so an answer for this is look first of all is the actus Reyes of murder there and we're looking for that unlawful killing of a reasonable creature well look uh we've got Chang he for all intents and purposes you know it doesn't tell us he's a fetus or a brain dead person he's clearly a human being and it says he uh stabs him sorry Dean stabs him and he dies so that is the actus Reyes fulfilled what about causation can we say confidently that Dean has caused Cheng's death through that actress Reyes and you'll remember the factual legal cause must be met factual is but for Dean's actions would Cheng have died anyway using the case of perhaps Hughes or Paget to illustrate and I think it's clear here isn't it factually speaking that Dean you know uh is in fact the cause of Chang's death now do we if we go on to Legal causation because we need both should we say that Dean is uh would the law say that Dean is um legally to blame at fault and what we say here is you know has he made a more than minimal contribution to you know Chang's death by stabbing him that's the kimsey case be used to illustrate and the answer would be yes in fact it's a significant cause of Cheng's death isn't it the stab wound um if you want to go drill down into even more remember that Smith case what is the operating cause of death well the operating cause of death is the stab wound but you'll notice the mention of Hemophilia it's an underlying health condition so you should have spotted the thin skull Rule and we know that doesn't break the chain of causation that's the blow case for the Jehovah's Witness therefore it looks like we've proved causation there are no intervening acts here nothing there and then that leaves us with the men's rare for murder malice the fourth or Express intent to kill or implied intent to cause serious harm now given that he stabbed him in the leg that would suggest I would say um not an intent to kill because he was owed money and you know if he killed him he could never get his money back so it demonstrates the intent to cause serious harm so that would be the Vicar's case that we spoke earlier of with the um elderly woman who was uh viciously assaulted um in our seller by by I think it was a was it a burger or a thief so all said and done there we are now second one Ethel a Rich author believes that Matthew had her granddaughter killed when they're in a relationship she lures Matthew to her office where he believes she's signing a new will in his favor when she asked him to place it into the walk-in safe she locks the safe door behind him he dies after running out of oxygen a few hours later is Ethel liable from Matthew's murder um so same as before is the aptus race of murder there we're looking for a reasonable creature and being a human being it says Matthew it does not say anything again that he's a fetus or uh you know an unborn child or a brain dead person whatever so we're just gonna simply say the actress race is fulfilled by Ethel when she locks him in the safe and he dies due to lack of oxygen hours later causation same thing so factual cause but for the actions of Ethel would Matthew have died anyway Hughes or Paget case the answer is no he wouldn't have died anyway so clearly she is in fact the cause of death there but we need legal causation has she made a more than minimal contribution by her actions of locking him into that safe that's the kimsey case well once again I think we can safely say it's the significant cause of his death because he you know runs out of oxygen um do we see any intervening acts as a possibility or any of the other things we've previously discussed know that leaves us with causation being established what about men's rare we know it's malice of forethought Express intent to kill or implied tend to cause serious harm and I think given that she um lured Matthew that's the key word she lures Matthew because she um believed that he had killed her granddaughter I know that we say that uh motive is not same uh as men's rare because men's Raymond for murder it's intent to kill of course use hump but I think that helps give context here to say I think she intends to kill him basically because if you put someone in a huge safe or vault a walking you know kind of safer vault and you shut it behind it's airtight you know you're going to run out of oxygen and die so yeah I think that's murder and then we've got Jeffrey stabs who's estranged wife Susan nine times she's admitted to hospital but due to the wrong drug being administered she suffers a cardiac arrest the medical team managed to restart her heart but she suffers brain death now the doctors turn off her life support machine so again in a typical so a question for this uh unless of course as I said it's 10 marks for AQA 10 marks question can narrow it down onto one specific aspect potentially same thing at this race yes we've got Jeffrey stabs Susan and she later dies so that's fulfilled causation this is where this one is different because what we have here is the medical aspect treatment um so factually I think we can say the test is met is the legal test met for causation by Jeffrey has he made a more than minimal contribution yes he has but no she when the medical staff are treating her her heart stopped She suffers brain death and then she dies when the life support machine is turned off um I think this is a case of simile to Smith the two soldiers that we talked about earlier the fighting and the barracks one gets one got stabbed in the lung the victim then was given poor treatment but the poor treatment wasn't deemed to break the chain of causation the operating cause of death was uh the Stab Wound and I think here you know we also know the case of malsharek we mentioned earlier a doctor turning off a life support machine when the patient is brain dead in other words no longer a reasonable creature and being no longer a human being would not break the chain of causation so causation I think here is established for Jeffrey and the men's rare while he stabbed her nine times I should say sorry estranged means uh you know separated no longer together so he stabbed her nine times I think the the volume you know the amount of times you've stabbed her he stabbed her indicates an intent to kill and so therefore we can safely say murder um I've put in there just having a look sorry just check um oh big upon sorry silly me silly me I should have seen that um I'll reverse one part of what I said I think you're ahead of me on this it would in fact be a break in the chain causation arguably so because what I didn't see there she was given the wrong drug that was the key bit sorry I read the bit ahead always read the question um and the scenario so because she was given the wrong drug there is a possible argument that this is similar to the Jordan case and therefore it's down to the medical treatment being palpably bad and therefore she dies as a result of something that is so independent of what Jeffrey has done okay so it's the drug that causes the cardiac arrest the operating cause of death is due to that drug so I'm just going to correct that that's why if I flip it again we have the atus race we have the men's rare but the causation part we do have seemingly an intervening act by a third party so just want to be clear three more a Hitman Agent 48 is hired by a woman who does not want to divorce but instead to kill her husband Ian and inherit his wealth unfortunately the Hitman is incompetent and when he is about to shoot Ian misses and kills an innocent passerby named Phil by mistake is the Hitman liable for the murder of Phil so again you can take a little bit longer with these now if you like but is the actus Reyes present well uh yes it is because of course Phil is a human being a reasonable creature um are there any causation issues here no no I don't think factual legally there would be and men's rare then intend to kill or cause serious harm well he has as a Hitman I would assume an intent to kill which is Express malice a forethought but just by the fact that he misses and hits an unintended victim you should know or Remember by now that won't prevent liability we have a rule called transferred malice and in this case his his malice his intent to kill uh Ian has transferred to fill the um another victim and he will be liable and I would use I think we use the Latimer case didn't we for transferred malice which is the uh defendant having an argument or a fight a pub very old case uh takes off his belt you know tries to launch it at the uh at the um it's his victim it hits the victim but also bounces off of that victim and hits a woman another victim the unintended victim in the face and that's really what we're seeing here um Matt has an argument with his partner Claire who is pregnant as he is unhappy about the pregnancy he pushes her down to fly upstairs in their home with the intention of ending the pregnancy which it does is Matt liable for the murder of Claire's unborn child now you should be ahead of me on this one the actus Reyes then um we need a reasonable creature in being and we do not have one in the eyes of the law in the UK because of course an unborn child is not deemed a reasonable creature so the Attorney General's reference number three of 1994 is the case you want to discuss and essentially that is the end of the argument really there no need to talk about causation or men's rare um that certainly resolves it now Selena throws a large Stone into a river to see how much of a splash it will make Jake is swimming in the river and is hit on the head by the stone and dies as a result is Selena liable for the murder of Jake um starting again do we have the actus Reyes there for murder um yes we do Jake's a human being a reasonable creature causation um are there any issues there with causation um seemingly not factually and legally but I think where this one is going to uh you know be challenged and uh happily for Selena is it she doesn't appear to possess does she the men's rare for murder malice of forethought expressed intent to kill or implied intent to cause serious harm and I've I think I've put here um if in doubt you know in that situation you could consider couldn't you oblique content clearly not her desire to have killed Jake um do we think that uh the defendant foresaw her consequence of you know throwing that stone and killing Jake as a virtual certainty and I think just to pop back again uh from Facts we have here the answer is no now whether it could possibly be involuntary manslaughter um again is not something I think we'll go into going to now I mean it's worth mentioning about the exam that typically from what I can see in the AQA anyway is the question I I would say read the question first in a problem scenario and then read the scenario and then go back to the question but it should usually say the word murder so you know consider the criminal or whatever it is considered the criminal liability of you know Selena for the murder of and so you know you're focusing on murder um if the question were to say for the Deaf you know consider the criminal liability of Selena for the death of then usually that's a pretty good clue that you're in the Realms of uh involuntary manslaughter you remember that being unlawful that man's Slaughter otherwise known as constructive or gross negligence rather than murder so there's this absence isn't there of um Mentor for murder so yeah anyway Selena no um okay just a few more uh sort of puzzles or riddles here I I can't claim to written myself I found them online but if you like these then by all means you can pause the video and read through them now and I am just going to flag up the answers so we have how can the murderer shoot him in the stomach if he came up behind the man secondly um I always think this second one it sounds better when you say it when it's written it's probably a bit too easy but clearly the room with the Lions because let's face it they'd all be dead uh that point and then the last one we've got he never actually asked the cop where the scene of the crime was so how did they know uh sorry so they knew that he had murdered his wife they they clearly he turned up and knew where to go and only the murderer would have known that okay moving on um should you go to prison if you kill are there any circumstances when this shouldn't happen now this is really a link into what's going to be voluntary manslaughter it's linked specifically to murder and we call these two defenses diminish responsibility and loss of control we call them special and partial defenses to murder they're special because they apply only to murder these two defenses no other offense so you know be careful don't raise these for anything else and they are partial because if successful if successful the defendant's charge of murder will be reduced to um voluntary manslaughter it's voluntary because they have still killed the victim you know they they've kind of they're you know they they chose to do it if you will but what we're saying with these defense of these defenses is there there was a justifiable in the eyes of the law of reason as to why they did it uh and the law is prepared to accept um that the person there for the defendant is not at the same level of blame or fault as somebody who you know directly intends for example to kill someone because they want them dead so we're going to deal with um diminished responsibility first and this is this topic becomes more challenging because it is an example of statutory defense so this has been laid out by Parliament but common law the case law helps then to further develop the law so for the exam you will need to know both um so we need to know for example here that section 2 of the homicide act 1957 is where we can find this defense but it has since been amended in other words altered by section 52 of the coroners and Justice act 2009 we might just talk shortly about a couple of those changes um I think really they would just to clarify law nothing as significant certainly as loss of control where that's a whole uh different ball game so with that in mind we're going to move forward so the defense of dimis responsibility you can see on your screen now or in the video and you are this is one of the challenges of these topics you're going to need to memorize the Four Points okay now so it says here a person kills or is party to the killing you know um and it's not to be convicted of murder if they were suffering from all right here we go an abnormality an abnormality of mental functioning that's the first part you can see um so we're looking at their things like you know how has their their you know mental functioning been affected are they suffering from perhaps delusions uh some medical uh you know illnesses can be um were they um otherwise affected mentally by um not being able to to understand what they're doing whatever so that's the first one okay um the second one is it has to be due to a recognized medical condition and there has to be medical evidence uh presented to court by the defendant for this to succeed um I think I uh we're saying I don't know if I say it later but um the uh standard of proof in a criminal case how good must the evidence be for the court or indeed if it's in the Crown Court like you know Murder would be jury to um reach a verdict and we know it's beyond Reasonable Doubt so it's quite a high threshold isn't it um for a good reason if you're going to convict someone of murder and you know mandatory life sentence and send them to prison um but if this defense is raised by the defense uh as you would expect then the standard of proof reverses and it's on the balance of probabilities so the defendant and the defense team only have to prove this defense on the balance of probabilities it's a lot lower than the criminal standard I mentioned earlier Beyond reasonable doubt it's essentially just almost like 51 you know more than the other side in terms of how persuasive with the evidence you've been but it must arise from a recognized mental condition now the exam question in the scenario could specifically mention it if it said for instance schizophrenia then we mentioned earlier you know hallucinations delusions that's something that could be um present with that and that would affect the mental functioning so that's clear but it could also be a whole range of other medical conditions so we're going to see shortly it could be things like you know severe depression um you know uh PTSD post-traumatic stress disorder whatever all right um so for the exam question doesn't say it um but mentions you know hallucinations or otherwise as I mentioned then you might want to just uh make a comment in your analysis that it's likely to be schizophrenia um if they have something like feelings of Despair that might be a good indicator that one could conclude with medical evidence that it is depression and so on so once you've got that we've got the fact that it must substantially impair defense ability to do at least one of the following three things now if all three things are present great for the defendant but um at least one will be enough for this defense to work with that medical evidence so look out in an exam scenario whether it's one or more and you wouldn't be expected to to comment and you know analyze it and that is substantially impaired their ability to understand the nature of their conduct so basically the mental illness if you will means that they don't know what they're doing now if it was a schizophreniac and uh somebody was suffering from delusions perhaps they think a person is not who they are um then that would clearly meet that that part or it could be their inability to form a rational judgment and to think rationally means in other words to think you know logically like a normal human being perhaps that has been substantially impaired again if we take the example of uh you know as I said delusions with a schizophrenic um then they're not thinking rationally are they and then the last one could also be or exercise self-control could it be some sort of medical condition there that means they they have that inability they're more likely to explode now don't confuse the this with loss of control defense though it mentions self-control um and then the last Point number four actually number four is one of the changes that section 52 and the chorus and Justice app made and that is they wanted to establish clearly in the minds of the jury that the the mental illness if you will um and what was substantially paid there's a there's a causal link between that and why the defendant has killed so that's really the last point it provides that explanation some students tend to forget 0.4 I'm not sure why so just make sure you remember it's four things you need to outline in your answer before you make comment so if we move on and I think the key case here we want to talk about is burn um I use this case or expect to have this case be the supporting point for the abnormality of mental functioning that first bit and here we had a sexual psychopath uh irresistible urges to strangle young women and I think this is a really useful ratio desidendi I think for those students who want to do particularly well in the exam it's worth remembering this quote it came from the court of appeal in this case and they said an abnormality of mental functioning is a quote state of mind so different from that of an ordinary human being that the reasonable man or reasonable person would term it abnormal so that really you know um nails down what abnormality means now this case was 1960 I should have said I should have said earlier but the first point of the defense used to read abnormality of mind then with Section 52 and the currents and Justice act it was altered to mental functioning I don't really see there is a great deal of difference but perhaps it just clarifies once again to the jury to the court uh that it's you know how they're functioning as a person that links to that substantial impairment and then of course that added bit at the end about provides an explanation so that's the case we use for Rapid management mental functioning um the case of goals is something I think that needs to be put in with the third point so we're skipping one a minute I know the issue of substantially impaired so goals 2016. very simply defendant killed his partner admitted The Killing um the ratio dissidentially the law from this case is um as far as I understand it it's a bit of a tricky case substantially means an impairment of some importance and not trivial um so they basically try to explain what substantial means I'm going to add the following though as far as I understand it the judge who directs the jury in a Crown Court trials to the law would not seek to give a direction on what substantial means they would leave it to the jury I think that's what the Gold's case makes clear they leave the meaning of the word substantial to the jury takes its ordinary meaning however if the jury require or ask for I should say some sort of explanation of what substantial means I think that's essentially what this case has tried to give us so that case of Golds is used for the third part of the defense when you're explaining substantially impaired um gittins um not very pleasant case we've got here the defendant attacks and kills his wife with a hammer and then rapes and kills his um stepdaughter I think it was and the law from this case is it wasn't successful for the defendant here I think he'd been intoxicated more on that in a minute and was suffering from severe depression uh but certainly um the court weren't willing to accept that the severe depression was you know what was uh substantially impairing him at the time so I should say now we'll come to it later the intoxication issue is entirely removed and separate unless it's a particular illness called alcohol dependency syndrome um but the court did accept in this case that with medical evidence it you know severe depression is a recognized medical condition and could form the basis of a successful diminished responsibility defense but the court just weren't prepared to accept it in getting this case and what's interesting actually is and we're going to come to this again later and I'll show you an example um they're you know even if you present this defense and you have the medical evidence the jury can choose to ignore it so it doesn't mean you're necessarily going to win uh we come to the case of alawalia and this case is going to come up again for the loss of control defense but in relation to this and this is actually a film still this is from the film provoked that they made um essentially the facts very briefly I mean she was an abusive relationship marriage with her husband uh Deepak I believe his name was and a number of things have been done to her I think she'd been you know physically and emotionally abused she'd been sexually assaulted at one point she was pushed down the stairs whilst pregnant with uh one of his children and uh there was an you know about 10 or 11 years of marriage I think it was and it culminated in one night where there was a big argument he threatened her with an iron that was she'd been using at the time and she was fearful for a life she waited until he was asleep and then she at night came up the stairs with a lit candle and some I think it was you know Petrol in a container poured it over his feet and then uh he you know set him a light and whether she did that on purpose or dropped the candle will never know um she was originally convicted of his murder because she tried to use uh a defense other than diminished responsibility and about that later and didn't have any success it was on appeal after I think two or three years she'd served in prison that she attempted to raise the defense responsibility now it is worth noting that um generally speaking on appeal I think appeal courts don't like to hear you know the defense of Demis responsibility being raised on appeal I think they'd much rather it was dealt with at you know at trial the court first instance so it's really only if there's compelling evidence or or I suppose you know new evidence that suggests that the defendant in this case otherwise was suffering from an abnormality uh of mental functioning and as we call it now at the time that they'd be prepared to hear that appeal um and of course they did and um I think it was endogenous depression or what is phrase now in the context of her situation as an abuse abuse spells as battered person syndrome or battered women's syndrome as it was known then so this case is a useful case for arising from a medical condition that second point of the defense we discussed I think I would prefer students to put kittens there but if the problem scenario you're presented with has someone that you know an abused sort of person domestic violence you may certainly want to raise this and specifically this syndrome so as I mentioned you can read the story provoke in her own words of karanji otherwalia you can get that online quite cheap uh and there was a film made in 2006 which is worth watching as well and they're obviously being a drama there are parts of it that have been altered and so forth and characters created for that story is there a defense of demise responsibility where intoxication is involved now we mentioned this earlier and my response was no intoxication is irrelevant it's a removed part of the defense unless unless we specifically see alcohol dependency syndrome so if we move forward look at some cases we've got uh ditchman and in this case the defendant drunk suffering from a depressive grief Disorder so as you can see there that's the with medical evidence that's kind of the um recognized medical condition that was affecting his mental functioning he he was his inability to think rationally is inability to sort of exercise self-control all of those were substantially impaired anyway he ended up killing the victim because I think there was an argument where the watch um you know fell to the floor got broken he um turned on the victim who he in his mind accused of you know breaking the watch and the watch was given to him by as I say um his aunt his late Aunt who he'd recently lost was still very upset about and given his depressive grease disorder he attacked the victim and I think uh kicked him to death so the law from this case the ratio is where the defendant is intoxicated diminished responsibility as a defense to murder can still succeed if there is a pre-existing abnormality of mental functioning so in an exam scenario if it says intoxication right yes there's the defense of intoxication that General defends more on that later but in terms of dimir's responsibility just look for a possible recognized medical condition you can hang the defense on and make comment that otherwise the intoxication is irrelevant a case of wood we've got here defendant and alcoholic and drunk at the time killed the victim when he woke up to find that the victim was making unwanted sexual advances towards him ratio then this is the case for uh alcohol dependency syndrome this is the case we want to raise if we feel this is relevant so again I'm just trying to think prompt scenarios and such if the you know the scenario suggests uh intoxication then I think the examiners wanting you to discuss what we've just talked about how intoxication is not relevant um you know even being an alcoholic wouldn't be enough if there's indications that the um defendant has any degree of control over their drinking when they start stop all of that won't be relevant but if they are so dependent on alcohol as to be you know that or indeed I don't know if the problem scenario would actually explicitly say alcohol dependency syndrome well you should talk about it as you know law says this however if it were that with medical evidence the outcome would be this um so a bit of analysis and evaluation assessment objective three for this defense remembering of course that uh we said before the 15 marks question is uh certainly analytical and valiative any problem scenarios also have a degree of AO3 in there as well and I said about how the jury could even with medical evidence disregard defense of diminished responsibility and we've seen that in a very famous case Peter sackcliffe the Yorkshire Ripper who um uh I think I don't know any more details here but memory serves he had his Killing Spree you know he he started I think as a grave digger at one point and he began to believe that God was speaking to him and God he alleged was telling him to kill uh prostitutes to go on this Divine mission to kill prostitutes now it's worth saying of course that not all of um Peter sackcliffe's victims female were prostitutes but that is the defense he tried to put forward and he was diagnosed at trial with schizophrenia but because of you know the the the um uproar all these killings had been that that had caused due to this serial killer I think essentially the jury felt he should be punished and therefore they treated him as a murderer and he was convicted of murder even though as I say he was a schizophrenic schizophrenic so you've got an interesting argument here of on principle on principle is it fair to convict someone who has a recognized mental condition that you know provides that explanation for why they kill um for that to be denied when perhaps they're not at the same level of fault of somebody that didn't have you know an abnormality of mental functioning so is it fair to convict someone and treat them the same but you know equally I think it's fair to say that um through the case and how he committed you know the murders and the attempted murders it was clear as well that he you know he knew what he was doing so you know it's an interesting point to discuss uh the second one is voluntary intoxication is not relevant that is because the fault lies with the defendant if they choose to drink or take drugs that's a public policy reason I talk about the defensive intoxication in a later video a general defense it's not really it's strictly speaking a defense because whereas with other General defenses it leads to complete acquittal the law has a balancing act we don't want the law to say you know you were drinking you have a defense for example what we're talking about now murder so the law is quite strict and will allow only alcohol dependency syndrome not you know alcoholism or or just you know heavy drinking whatever and then um linked to uh something else section 52 of the chorus and Justice act yes has has that bit added in I mentioned about providing an explanation for why the defendant killed or was a party to the killing and uh that was one of the changes made by that recent statute so it was a clear causal link between the abnormality from that recognized condition that substantially impaired them and that has led to them killing I think you know that's one thing that the statute tried to make clear in the minds of the jury so yeah in the news I'm not going to dwell on this but that actually was what I was referring to with Peter Sutcliffe um and the fact that the jury disregarded the fact he was a schizophrenic would you have done the same interesting question it's worth looking at that case to find out a bit more detail perhaps so will the defense of Demis responsibility be successful here let's have a look so we've got Anaya is in an abused and controlling relationship with her husband who regularly beats her she is deeply depressed one evening after a violent confrontation Anaya Waits until her husband is asleep before hitting him over the head with an ashtray killing him can she Anaya used the defense now at this point um you might want your book open or your notes open you need the defense outlined in front of you those four points again that I had on the previous slide so what you're asking here for example is is there an abnormality of mental functioning that's that burn case remember the sexual psychopath state of mind so different from the ordinary human being that a reasonable person would deem it you know abnormal um so if we start with that mental functioning affected um not a lot to go on perhaps but we've got there that she is deeply depressed or a mental functioning is certainly affected and that she is depressed the recognized medical condition and I would be using the gittin's case here remember that was for severe depression the man who attacked his wife uh and killed his wife with a hammer and then he subsequently his stepdaughter the kittens case well we can see the word deeply depressed here of the words so there's a link there but be given it's an abusive and controlling relationship you may want to also raise and I think I would yalawalia case and battered person syndrome so low normally it's one case per element I think in this instance because of that there's an opportunity to expand our answer for that bit now having done the first two bits is there uh you know what's been substantially impaired and remember looking at your notes there are three things uh we want at least one um stats you pair the ability to understand the nature of their conduct so they don't know what they're doing in other words it could be to form a rational judgment they were unable to do that or unable to exercise self-control now if we look here on face value I would say um the indications are she knows what she's doing perhaps because she does wait until her husband is asleep it's very similar isn't it to the other Walia case um perhaps it would be a safer bet to argue that she's unable to think rationally um or indeed self-control could be an argument and then lastly uh you know and that's the Gold's case sorry the goals case for a substantial leave that word to the jury takes its common you know ordinary meaning but if you are going to direct the jury if they ask for it it's going to be something I suppose that is uh you know significant and does it provide a reason for why she kills um I think it does so we're going for yes second one Bruce believes the government are monitoring all of his phone calls as he has evidence that extraterrestrial life exists his boss at work is an alien while waiting at a train station he sees a man in a black suit next to him believing he is being followed Bruce pushes the man into the path of the uh oncoming train and kills him can Bruce use the defense of Demis responsibility so again look at your notes those four points and do we have an abnormality of mental functioning I think uh we can certainly say there is evidence here of uh paranoia he thinks his uh phone calls are being uh you know monitored uh they perhaps he's being followed and whatnot um possibly evidence as well of delusions um if we were to pin it to a recognized medical condition we would say schizophrenia perhaps and does it substantially impair his ability to do anything well I think we're looking at um does he know what he's doing perhaps there's an argument he doesn't know the nature of his conduct because he perceives here an alien rather than a person I think certainly we can say safe ground that his ability to think rationally form a rational judgment substantially impaired um exercise self-control possibly that as well but certainly the rationality part does it provide an explanation for the killing I think it does so um we're going with yes I put the burn case there but just remember I think with the Four Points we're going through like a checklist for this defense burn for the first one um kittens uh for the second and then we go gold and then there isn't in fact anything for the fourth one ciao is suffering from schizophrenia and has stopped taking his medication he begins to suffer from delusions that people are demons and kills his elderly neighbor can shall use the defense of Dr to misresponsibility now um the abnormality mental functioning here is the delusions useful that the thing uh the scenario mentions it the recognized mental condition is schizophrenia clearly what's been substantially impaired well similarly doesn't understand the nature of his conduct he sees demons not people or the elderly neighbor cannot think rationally and so forth possibly even exercise self-control so you could say it's all three but most certainly doesn't understand the nature of their conduct or think rationally and I think it provides an explanation so we've got yes for this one as well now we've got Jack is a sexual psychopath he strangles and kills young women he argues in court that he suffers from irresistible urges and should he be released he will kill again can jack use the defense of Dr to miss responsibility um it's a carbon copy really of the burn case isn't it so I think the abnormality is the irresistible urges that's the uh the mental functioning that's uh abnormal the recognized mental condition is the fact of his psychopathy he's a psychopath substantially impaired well I think clearly this one is the ability to exercise self-control because it's irresistible urges you can't control and it provides the explanation and I think clearly you would say in your answer how that relates directly to the burn case and again you know using that quote from the court of appeal in that case a state of mind so different from an ordinary human being um for a reasonable person to deem it abnormal that's basically what we have here George meets Sarah at a party offers the driver home he makes sexual advances towards her and she slaps him so he punches her in the throat and she dies George suffers from frontal lobe damage and epilepsy can George use the defense of Dr abnormality here um looking through doesn't really give us a lot to to go by I think um but one would say I mean frontal frontal lobe is sort of the center for I think where you're you're you're sort of emotions and so forth are and you're controlled so maybe he's certainly more easily um agitated or angered shall we say the abnormality sorry the recognized mental condition would be indeed frontal lobe damage and epilepsy so both of those fit substantially impaired I think probably uh to think rationally perhaps but certainly to exercise self-control does it provide an explanation well I think it does for the killing so we're going yes for that Jane has been married to Stuart for 15 years and now finds him increasingly annoying Jane is going through the menopause after arguing over some unpaid bills in the kitchen Jane stabbed Stewart in a fit of rage can Jane used a defense of dimesh responsibility now one thing to say with respect to to the menopause um and I am by no means an expert on this but it is sort of known as for women that go through it and every I think every woman certainly does go through it at some point in her life some earlier than others uh it's a change of life it's their body is changing hormonally and you know um and therefore the chemical change in the body of the hormonal change of the body means that they are certainly affected there are some who become more irritable some more you know certainly more inclined to be more emotional and there can be extremes of this so um the abnormality of mental functioning here could very well be that sort of um being more easily angered or the emotional instability the recognized mental condition would in fact be menopause and obviously medical evidence needs to back this up jury then left to decide what's substantially impaired well I think the clear thing is the inability to think rationally but most certainly the inability to exercise self-control that's been substantially impaired and I think it would provide an explanation for for the killing here then we've got Jonathan is a binge Drinker in a violent relationship with another habitual binge Drinker after a violent altercation with his partner Jonathan kills him he later claims he has no recollection of killing the victim he admits that he can choose when to drink but once he does he cannot stop can Jonathan use the defensive Dimension responsibility um again abnormality of mental functioning uh we would say again not much to go by perhaps um no recollection to his memory is affected that certainly could be relevant um perhaps he's uh more violent more emotionally unstable the recognized mental condition well this is the problem isn't it because it mentions intoxication and we know that intoxication is irrelevant unless it's alcohol dependency syndrome now you would be expected to write that in your answer to this in the exam but the key thing is he admits that he can choose when to drink so the fact that he exhibits a degree of control means that he has no recognized medical condition for this defense and therefore the defense will fail and that's the case of deichmann I think to to use if you used wood that's fine uh but I think dietary makes the point that intoxications are relevant Graham suffers from severe depression since the death of his wife and child while drunk and drinking in a bar a man spills his drink over Graham by accident Graham punches and then kicks the man to death King Graham use the defensive diminished responsibility carbon copy isn't it more or less of the deichmann case so I'm simply going to say um in the deichmann case um we heard didn't we that it was a severe um I think it was grief depressive disorder um if I got my words correct there but we know depression from that case and indeed kittens can with medical evidence be enough uh we ignore the intoxication and what's been substantially impaired here perhaps is the ability to um exercise self-control Paula suffers from a head injury since early childhood which causes her personality to change while smoking cannabis a door-to-door Salesman knocks on her door she picks up a knife stabs and kills him can Paula used to defense of the Mis responsibility now intoxication just to be mindful uh can be through drink s or solvents and in this case it's the first scenario to deal with drugs and in this case the illegal drug of cannabis so what do we know we know that intoxication is irrelevant so we move that aside for this defense what are we left with we're left with this head injury that causes her personality to change that may well be enough so the abnormality is changes to a personality the recognized mental condition is the the sort of head injury or the the you know brain damage or whatever she suffered and uh what's been substantially impaired is her ability presumably to to exercise self-control perhaps even to think rationally and that could provide an explanation for why she killed salesman and I'd use deichmann just to make the point of that intoxication again we've got Jennifer is suffering from acute stress disorder since losing her job in a heated argument with a friend while intoxicated she strangles her friend to death can Jennifer use the defense um very quickly now abnormality um stress anxiety recognize mental condition acute Stress Disorder so we're not talking about simple day-to-day stress we're talking about a recognized medical condition severe distress um medical evidence needing to support is there anything substantially impaired well she's in the middle of an argument um it could be the ability to exercise self-control at the very least the intoxication though is like with deichmann again irrelevant so it looks like we've got an explanation for why she's killed the acute stress disorder Aurelia is an alcoholic she drinks every day but chooses to stop in the evening when her husband Fayard returns home from work Fayard tells her that he's leaving her so she stabs and kills him can Aurelia use the defense of Dr again what do we know about intoxication demise responsibility the Dutchman cases it is irrelevant uh particularly so where um as we've described the person has any control over their drinking alcoholism is not enough um is there some sort of abnormality to hang this defense on otherwise um doesn't appear to be does it so unless with medical evidence she can say she's actually suffering from ads alcohol dependency syndrome I don't think she has a defense and the wood case is what you know we can use making that point while intoxicated Maria believes her partner Tina is cheating on her this is in fact untrue consumed by jealous rage Maria has an argument with Tina and strangles her to death can Maria used a defense of Dimitri responsibility uh intoxicated right so let's ignore that abnormality well it seems to set a focus on the jealousy part doesn't it um she seemingly uh cannot think rationally um now jealousy broadly speaking you would say is not a recognized medical condition but um there is a possible condition I've read about called uh Othello syndrome it's named after the Shakespeare play and it's where somebody suffers from um all-consuming feelings of jealousy that are Far and Beyond you know so excessive of what a reasonable person like your eye would actually um have so for instance if somebody is so consumer jealousy even when it's clear by the evidence by the facts that there was nothing to be jealous of so um like this case here there is a possible um thing to exercise here for the defense substantially impairing perhaps the ability to think rationally to exercise self-control and so on so I've put the word possibly but um that would be one to argue right so at this point for special defenses to murder that leaves us with loss of control the last defense to murder and what we need to know about this is that it's found under Section 54 of the coroners and Justice Act 2009. just as before it's special and partial defense to murder special because it's only to murder partial because it will not reduce sorry it will not completely uh you know eradicate fault you know the defendant has killed someone but it will reduce the sentence from mandatory life sentence to if successful a discretionary life sentence well the judge can have the choice as to whether you know how many years you may serve in prison or you know whatever that might be now it's worth noting you don't need to know uh too much about the old defense that was there called provocation so loss of control defense has replaced it but the changes we will see in the loss of control defense are as a result so it's nice to just contrast the two and cases like that we've come across so far the case of valiwalia and you can see a picture there um this time of of the actual real uh karanji otherwise and her husband Deepak the victim I think cases like this highlighted how the old defense of provocation didn't support victims of domestic abuse so we remember the cases where she was an abuse spouse many years and one night after a confrontation she waited until he was asleep and then she crept up the stairs poured petrol over his feet and set him a light with the candle and he died and she was subsequently charged with murder now at trial she tried to raise this defense of provocation but because the old defense said you know you if you lose control it must be a sudden loss of control because she waited until he was asleep that meant the defense would fail and it certainly gave more Credence or evidence that this was you know Murder that she intended to kill him that she waited it was premeditated so as you can see here the defense of provocation wasn't successful for and in the end as we described it took a further Appeal on the grounds of diminished responsibility and new evidence for her to claim uh battered women's syndrome and uh be it you know released from prison so the old defense fails to recognize that a loss of control can be cumulative or a slow burn it builds up over time and certainly she had experienced years of abuse and what we're essentially saying is after that final confrontation uh prior to him going to going to sleep that night it built up and built up and she just sort of snapped inside and she lost it but that old defense of provocation didn't allow for anything other than the loss of control being sudden now who is more likely to lose control in the moment male or female and I think most of us would certainly agree that it would be males be that for biological reasons such as testosterone or otherwise so immediately we can see that this old defense of provocation not only failed to serve people who lose control over a longer period of time but it's certainly got some sort of male bias or you know it favors males that defense more than more than female so it meant that alawalia only succeeded on appeal with a defensive dimmish responsibility effectively arguing as I think some put it that she was insane and so clearly there's an interesting article there you might want to look at to read her story clearly there isn't a need there was a need for the law to redress this and therefore provocation defense to murder gets replaced by loss of control which is what we're talking about for this exam so I've put some of the points there for analysis and evaluation the old defense you know the sudden point we just talked about that didn't really help that's got rid of doesn't favor Slow Burn cases the old defensive provocation had a gender bias favoring men certainly um you know women who are fearful of their Partners as otherwise and the serious violence he might commit on her weren't um really benefiting from that defense or given a reason and the last Point here is um we already know that there's a gender bias for men but uh the old defense of provocation used to allow sexual Fidelity as a reason for the killing and therefore a defense to murder sexual infidelity is in other words you know the belief that your partner has cheated so either you have that belief or you catch your partner in the act of having an affair with somebody and therefore you know if you're a man you're more likely to lose control and you're going to kill either the partner or the person that they're with and therefore you would have a defense and plainly uh and certainly by modern standards today in society that is wrong so the new defense tries to redress that balance loss of control by removing sexual Fidelity as a reason uh a justifiable Reason by itself to kill and have a defense to murder and uh that is because you know women are no longer seen as property it's a very sort of patriarchal male-dominated society the law and clearly there's no good reason to be accepted that you kill because your partner is is having an affair so section 54 of the corners and Justice act 2009 sets out broadly speaking three elements and once again you're going to need to know these three elements and learn the wording as closely as you can so firstly the defendant must suffer a loss of control no longer needs to be sudden we've just established uh can be over a period of time but obviously you know the longer that period of time the uh harder perhaps it will be for the jury to accept so um it will be for the jury to decide if it's ours like with otherwise perhaps fine if it's days certainly if it's weeks later this whole idea in the jury's mind that you know you could basically there's a cooling off period you could calm yourself down you're no longer having lost control that could as time passes be a reason for the defense to fail but it doesn't need to be sudden okay secondly there's now this introduction of what is known as a qualifying trigger this is put into 2A and 2B now both may be present or just one for it to succeed um clearly the Lord doesn't want to accept as we mentioned before certain situations that are excluded now like sexual Fidelity but they try to redress the bit with uh you know domestic violence cases abused partners D's fear of serious violence from the victim just as alawali would have been against her husband for example or indeed if you fear uh another person is going to suffer serious violence perhaps it's uh just for example your child that you know that your partner is uh you know physically abusing the second part is things said and or done that are of extremely grave character and leave the defendant to feel seriously wronged now in plain speaking sorry things said or done it should be all done um extremely grave character it just means it's got to be sufficiently serious so you know to be accepted that the defendant kills the victim and um it's left them feeling seriously wrong so the key term here is it's got to be serious sufficiently serious and specific to the defendant um we'll look at some examples but just over the top of my head um it could be for instance that um if somebody is uh sexually abused and they're being you know ridiculed or humiliated uh about that from um perhaps the person who did it then if the defendant then uh you know kills the person who's saying these things given the context of that I think it would be a sufficiently serious matter um and the defendant would feel seriously wrong to be having these taunts directed this humiliation directed at them and third finally because all three bits need to pass a person this is an objective test this is something clearly there for the jury to consider person of defendants age and sex so you know their age and and their gender with a normal degree of Tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same way to the defendant um this you know in the exam scenario it is for you to give your own view it may be different from somebody else's that is entirely fine now it's worth mentioning that the term uh circumstances can include uh I think mental illness it can include sexual infidelity so while sexual infidelity is no longer a qualifying trigger if you will a Reason by itself to kill it can be included there provided your defenses arguing you know one of the other two reasons uh if you're somebody that is more likely to lose control or snap be more Angry if you will you know um short fuse I've seen exam questions reference that you know uh sometimes that is actually irrelevant to this defense um you know if it were a medical condition it would be diminished responsibility but in relation to loss of control um if you have someone that's more likely to to lose their temper uh notice it says a normal degree of Tolerance and self-restraint a person with a normal degree of Tolerance and self-restraint so that won't apply so keycase first of all I'd use the case of Jewel perhaps for the first point about Dima suffer a loss of control uh interestingly here the defense shot and killed the victim fleeing the scene he was later found in his car carrying a survival kit of items so clearly the jury weren't going to be convinced here that this is somebody that's lost control this looks like a premeditating act of murder and somebody you know having a survival kit of items to whatever it is food um you know money maybe their past whatever the ratio is for this defense to work there must be sufficient evidence of a loss of control having been suffered so let's focus on one of the qualifying triggers that the law will accept as a Justified reason to lose control and kill and what I like to do here is a Venn diagram so I'll explain it first and then you may like to pause it before the answers have gone through so just focusing for a minute you have a defendant that has lost control the second element uh there's two triggers we're focusing on the second trigger 2B things said or done there are of extremely grave character and left the defendant you know uh feeling a sense of being seriously wronged and I've gotten the right hand side numbered one to eleven uh a number of situations where would you place them in this Venn diagram so for example if we type number one you can just use the numbers a crying baby where would you put a crying baby uh would it be except would it be things said you know uh by the victim the victim's the baby is it being said is it things done by the victim is it both or is it perhaps not of EX you know sufficiently grave character and sufficiently leaving the event feel seriously wronged that it just wouldn't work for this defense of lost control in which case you would put it on the outside of these circles so if you want to work your way through these pause the video and I'll be going through the answers in a moment okay just a quick sip of my drink there and um if we go through so number one I have placed on the outside so clearly a baby crying even if you were to suggest it's something that if it's not language it's something that babies do things done it wouldn't be sufficiently you know a grave character would it to leave the defense seriously wrong babies cry it's what they do interestingly though it was the case of I think it's pronounced um Doughty d-o-u-g-h-t-y Dougherty where under the old defense of provocation loss of control defenses since replaced it allowed for a defendant who killed his crying baby because he was lost control for the very fact he was crying and he you know got angry um they allowed the defense so the loss of control defense now um precludes prevents this from happening which is a good thing I think we all agree secondly abused by partner could be things said could be things done I think like we saw with the other Walia case that would be sufficiently of grave character and leave you feeling seriously wronged if you were the defendant you know like Ali while there so we put that in the middle revenge is on the outside revenge is not a qualifying trigger it's not something the law will accept by itself as a reason to kill why because um it's again it's premeditated it's murder isn't it and law doesn't want you to take uh Lauren to your own hands uh that's for the police to deal with and then the courts to to determine so Revenge no you confront and kill a burglar four we've got in things done so the burglar has you know done something by breaking into your house and uh I think you know contextually you'd feel that's a sufficiently serious uh situation you'd feel seriously wronged if that's been done to you perhaps you've got your family in the house as well and so um if you ended up killing having lost control and killing that person that could be uh possible for the defense we've said that section Fidelity is on the outside so be very clear there just to say though um interestingly an exam question may get you to analyze this what level of section Fidelity it's really up to the jury isn't it but you know it's a kiss sexual Fidelity if you kiss someone else I think most people might say yes it is um obviously anything above a kiss perhaps it becomes clearer what if somebody sends gifts to somebody you know like I said to my class what if somebody sends a teddy bear to somebody with a heart that says I love you or sends flowers to somebody would that be sexual Fidelity perhaps so in the eyes of the um the partner who feels that they've uh you know been spurned by um been cheated on but either way if that is the reason that they've killed or the juries see the defense won't work six you see your brother or sister being seriously assaulted well that's things done and we would agree sufficiently serious to be put in there as a reason why the defense might work for things said or done number seven receiving a fail grade from your teacher that is definitely on the outside of the uh of the Venn diagram circles because it's not sufficiently serious um teachers don't like giving fail grades excuse me I'm sure you don't like receiving them either but it's not a reason I think that anyone would accept is sufficiently serious for you to kill you might feel wronged but that's part part of learning and education so you can't say seriously so at number eight you're bankrupt and your partner says you're worthless well we could put that into things said because your partner said it interestingly think of the context here the circumstances bit remember the last bit of the defense said a person of D Sexton age or agent six with a normal degree of Tolerance and self-restraint in similar circumstances Etc circumstances could include for example here that you're bankrupt now if your partner says you're worthless given the context of you being bankrupt in the midst of that that might be a sufficient reason why you lost control and killed and so it would be grave in in that sense if a stranger came up to you and said you're worthless um and you weren't bankrupt for example then I think it would be you know much harder to prove the defense wouldn't succeed then it wouldn't have the same meaning would it um next one number nine you are attacked with a baseball bat uh things done clearly to you um and therefore sufficiently serious to place it there as a possibility of the defense working then we've got number 10 uh someone threatens to kill you that could be they've said it or maybe they've written it down sent you a text whatever we'll put it in both shall we I think threatening to kill you sufficiently serious and will make you feel seriously wronged and relationship breakdown well that's on the outside there's a case called Hatter I believe 2013 you may want to look it up and clearly relationship breakdown as sad as that is is something that is um I don't want to say well commonplace but it's something that you know is part of life and so therefore it wouldn't be accepted by the court or in department when they legislated this that it should be a reason for you to kill otherwise you could imagine what society would be like if they did allow it so just to refocus the qualifying triggers the excluded matters the things that won't count and you will have to look out for these in exam scenarios the first being Revenge we said it's not allowed in this defense that's section 54 subsection 4 of the coroners and Justice act um for the reason we said uh you know the law does not want you to take the law to your own hands and um revenge is just really premeditated murder isn't it in a sense uh the second call up front Trigger or actually have I labeled these wrongly I have bacon pond so this says excluded matter one it should be excluded method two and um oh no sorry I'm right I've lost myself for a minute now we're still talking about revenge the case of Bailey actually old case 1995 um pre-dates the lost control defense from 2009 but it's still useful because it illustrates Revenge case defense son was threatened by a drug dealer to the defendant drove to the drug dealers home killed him taking with him I believe a shotgun and a razor um the ratio of the law coming out of this case is Revenge as I said before isn't accepted right now correctly I'm going to say excluded Mata 2 the case of doors doors defendant returns home to find his wife asleep with a fully clothed man defendant begins fighting with the victim and then of course when he realizes uh he's not going to be successful the man's successfully fighting back and sort of hitting him he goes away I think probably it was to the kitchen and gets a knife and then returns and stabs him he then tries to use the defensive loss of control but the law is clear here in fact it explicitly States it in section 55 subsection 6 subsection A and B um and again if you want to look up the law just Google uh you know coroners and Justice that and the section numbers and you'll find the legislation but if the defendant incites in other words starts the violence so here the defendant comes home and he's obviously upset seeing his wife asleep with a fully clothed man the man's asleep he's not attacking him he's not putting him in fear of serious fights or anything like that so it boils down to things perhaps done and things done I mean again you could argue did he perceive sexual infidelity we know that's not going to work but certainly the moment that he started attacking the man when the man fights back he can't then claim that's why I killed him because you've started it haven't you Law's not going to accept that uh here's the big one we've mentioned so far um quite common in in problem scenarios it seems as well and this is the uh shown in the case of Clinton the excluded Mata three uh defendant's wife left him and the defendant suffered from depression you can see from the picture of the defend on the far left and his wife on the right she returned and I think he tried to you know reconcile the relationship they had an argument um his claim was that she had taunted him with um other men she'd slept with she didn't want to return home and um she also taunted him about his inability to commit suicide when he said you know he was depressed and I think um thinking of killing himself so the defendant killed his wife now that was the defense that Clinton put forward jury were not convinced um section 55 subsection 6 subsection C says that section Fidelity isn't accepted as an excuse for loss of control so it's a matter for the durian it's a matter for you an exam question too to decide to give a view this was reported in the BBC News you can see a link there um without going into too much detail I think what was clear though is um when he killed his wife he sent photos of the body to um I think uh on the phone of the alleged lover that his wife was now with so I think clearly the jury was satisfied in their mind that it was sexual infidelity that was the main reason for why he killed his argument would have been perhaps it was the taunts about his uh you know failing to commit suicide um when he was depressed things said but the jury as I said were not convinced and I think rightly so another key case as malash if the issue of intoxication were to be present in a scenario same as before really well here we are the defendant was intoxicated murdered the victim intoxication is not relevant so light with diminished responsibility you ignore intoxication if you're dealing with loss of control defense um you just deal with whether there is a loss of control and whether there is a qualifying trigger and it's not one of those excluded matters and so on and so forth um in a problem scenario for murder particularly a 30 mark one I'm thinking here you will find that um quite possibly both defenses have diminished responsibility and loss of control are there um usually in courtroom situation I would say both defenses can be put forward but usually there is one defense that's more likely to succeed than another I think that's really you know how the examiners look at it but yeah if they're both there raise them right scenarios then um so will the defense of loss of control be successful Pete's younger brother Ross is threatened by Thug with serious violence unless he repays a long-standing debt Pete is furious and drives 20 miles to visit the thug at his home a fight starts and Pete punches the thug Who falls and hits his head and dies is Pete able to use the defense of loss of control so at this point simply before um have the three elements of this loss of control defense outlined in front of you in your book or in your notes it was on the previous slide we did ask yourself is there a lost control here um well it says Pete is furious so that might well be an indication of of loss of control we know it no longer needs to be sudden uh we're using the case of uh I think Jewel to say that there must be sufficient evidence put forward to the court but it says that he drives Pete 20 miles to visit the thug so though it needn't be sudden it may be a question in the jury's mind that 20 miles has allowed Pete to sufficiently cool down to regain control and therefore not be able to use this defense but that's really up to you and the jury you know but you an exam question to say give a comment on and um just make sure you say the fact that it no longer needs to be sudden but it may cast some doubt then we've got the second bit of qualifying trigger now you're looking for one or both of those triggers the first being fear of serious violence from uh the victim to the defendant Pete or fear of serious violence to another um before we even get into the second bit I think we could easily say that's here because Pete's younger brother Ross has been threatened with serious Violence by a thug so that qualifying trigger is present um you could try and argue as well the things said or done certainly to the brother either way both triggers look like they're there certainly the fear of serious violence one um any excluded matters that may prevent this defense well I would say that if it's in the jury's mind that Pete acts the way he does out of Revenge bit similar perhaps to the Bailey case we discussed earlier with the father you know um finding out his son was uh threatened by a drug dealer and then going off to kill the drug dealer then that will mean the defense doesn't succeed uh you should have in your notes if you're following the way down the next bit of the defense which is with a person and defendant's age and sex with a normal degree of Tolerance and self-restraint and similar circumstances have reacted you know in the same way and I think most people would say in this instance no you wouldn't expect a person to go and do as Peter's done here so overall probably not revenge is going to prevent it Jimmy is estranged in other words you know separate separated from his wife and returns to the family home with a bottle of wine hoping for a Reconciliation to get back together however when he walks into the living room he finds his wife and an unknown man asleep cuddling on the sofa angry Jimmy swings the bottle at the man's head he wakes up he starts to grab Jimmy who then swings the bottle again killing him is Jimmy able to use the defensive loss of control this is as you probably gathered a carbon copy of the doors case we just discussed earlier and the fact that if you incite the violence if you start it yourself it is an excluded matter so if we were to comment on this the loss of control is there one um we can say yes Jimmy you know he's angry from the situation he sees of his wife um being with this Unknown man asleep is there a qualifying trigger uh you could perhaps he could perhaps try and argue things uh done a grave character and leave you know him feeling seriously wronged but it all seems to focus on the possible issue of sexual infidelity Maybe that's an excluded matter uh that was the Clinton case but certainly the doors case as well says that uh you know if you started the violence you can't then use the defense so nope not for him anayer is an abusive and controlling relationship with her husband who regularly beats her she's deeply depressed one evening after a violent confrontation and they awaits into her husband is asleep before hitting him over the head with an ashtray killing him is she able to use the difference of loss of control what we can say here is um we used this scenario I think previously in the context of diminished responsibility but now for loss of control um we would say yes the loss of control need not be sudden it can be a slow cumulative build up Slow Burn that's one way in which loss of control defenses try to address um you know domestic violence cases that they were seeing like alawalia um fear of serious violence would be the qualifying trigger um which I don't think I've put there they've had a violent confrontation I think fear of serious violence should be there as a qualifying trigger as well as things said and done and then you could ask yourself you know any exclusive matters uh is there Revenge there I I don't see it myself um and then the last test of a person's sex and age I think people perhaps again it's your opinion in that situation may well have acted the same if there was a threat then we've got Farhad is home alone caring for his newborn baby the newborn baby despite his best efforts will not stop crying in a rage he throws the baby across the room killing it is Farhad able to use the defensive loss of control um this almost makes you think of the case of Woolen perhaps that we've studied uh in relation to causation and virtual certainty but if you remember our Venn diagram the answer is no loss of control yes he he's um if I click back uh in a rage but qualifying trigger there's no fear of serious violence from a baby or to another and things said or done and not sufficiently serious enough so no um and Sal as well if I'm pronouncing that correctly apologize trial has recently lost his job and fall into a deep depression his father regularly taunts him about this and his failure to support his family as well snaps and bludgeons his father to death so repeatedly uh sort of beats his father to death perhaps with a blunt instrument or something is our able to use the defense of lost control well in relation to swell um we can say that the loss of control is well the word snaps is quite useful that shows a loss of control perhaps um qualifying trigger I think it could be things uh done oh sorry things said his father his father regularly taunts him things said and in the context of uh the failure to support his family that would make somebody feel you know it's a grave character and sufficiently uh seriously wronged um excluded matters again Revenge I don't see it but you might want to raise the possibility I think a jury would accept that qualifying trigger and again the last test the person of defendant sex and age normal degree of Tolerance and self-restraint in similar circumstances in this case the circumstances being the um losing his job being in a deep depression um I think you might find that people would accept that this defense that that is a a justifiable reason for why someone may have killed someone notice the deep depression bit yes to misresponsibility is relevant but it's a different defense we're we're focusing on lots of control at the moment and uh Jake and his wife agree to have a trial separation Jake falls into depression after a few weeks Jake attempts to reconcile with his wife but she reveals she has been having an affair an argument begins and she says she has been seeing a number of men taking anger strangle so to death is Jake able to use the defensive loss of control again can't copy more or less of the Clinton case than the issue of sexual Fidelity so um we can say you know loss of control well yes there's anger there qualifying trigger things said and done perhaps trying to focus perhaps on the uh well it's it's it's it's really difficult isn't it I mean whereas in Clinton he argued it was the taunts about his inability to kill himself that was the things said that made him you know lose control in this scenario again if I go back um we haven't got that we just got she reveals she's been having an affair and argument starts she's seeing a number of men so actually I don't think there is a qualifying trigger there at all and I think the excluded matter of Revenge and sexual infidelity I should have put is uh gonna stop this defense from working right a very long topic I know thank you very much for listening and I think our next video will be um in um I think it will be uh non-fatal offenses but thank you for listening good luck with your revision