Voluntary manslaughter defence Loss of Control Introduction As Maria has Killed John, She is likely to be charged with his Murder. Maria is both factual, â€˜but forâ€™ her actions, he would not have died R v White
(1910) and legal cause, as her actions contributed significantly to the death of John (R v Smith
(1959)). The mens rea for murder is established by evidence, as Maria throws the vase at Pauls head with the intention to cause Grievous Bodily Harm (GBH), therefore indicates that Maria had intention to harm and possibly Kill John, and therefore would be likely to be charged with Murder. However Maria may be able to plead the partial defence of loss of control, this is a statutory defence and only applies to murder charges. If the plea for loss of control is successful Maria will be convicted of Voluntary manslaughter, as she did intend to cause GBH but carried out the offence due to her loss of control, therefore will potentially be given a discretionary sentence, depending on the judgeâ€™s decision. The Coroners and Justice Act (2009) (CJA) made fundamental changes to the partial defence of murder and created the new defence of loss of control s.54 (1). The old defence of Provocation was abolished by s.56, therefore repeals s3 of the Homicide Act (1957). There are three elements of the defence of loss of control:
- At the time of the killing Maria must have lost self-control (this is an element that
- Under s.55 (CJA, 2009) the loss of control must have had a qualifying trigger (QT), so there must have to be a reason as to why you have lost your self-control and,
- Someone of the same age and sex of Maria, with a normal degree of tolerance and self-restraint and in the circumstances of Maria, might have reacted in the same way to Maria, s.54 (3) CJA, 2009.
Loss of self- control The first element contains the subjective question whether Maria had lost self-control, it is clear from the facts that she was extremely angry and snapped after she had found out that her husband was leaving her for another man. This meant she launched the glass vase at Johnâ€™s head which caused his fatal injuries. This indicates that indeed she had lost her self- control. In the old defence of provocation required that the killing had to have been â€˜sudden and temporary loss of controlâ€™, therefore excluded Duffy
 and anybody else like her that waited to kill their victim. However under the new law there is no requirement that loss of control was sudden s.54 (2) CJA, 2009. The purpose of this new requirement was because the old defence was criticised for failing to protect those who had suffered cumulative abuse who lashed out as a result of provoking behaviours/conduct, otherwise known as â€˜the last strawâ€™ Abid.
However if the killing was a planned revenge under s.54 (4) the defence would not be available. This highlights the balancing game in which the courts are faced with in terms of identifying what is planned and what is not. Therefore from the above it is evident that Maria carried out the killing in a sudden and temporary loss of control. She did not leave the room or plot her revenge she threw the vase in the heat of the moment, with the intention to cause GBH. Therefore s.54 (1) (a) and s.54 (2) would be satisfied. Qualifying Triggers The next element is to determine if Maria had a qualifying trigger s.55 CJA, 2009, in other words a reason why she carried out the crime. With the old defence of provocation, virtually any act was capable of being used as evidence of provocation. Thus there was no need to have the provocative action aimed at a person. This was such the case of Davies
 it was held that the defendant killed his wifeâ€™s lover for just walking towards her place of work. It was held that this act could amount to a provocative act and was put to the jury. There were many issues with this, as it left the defence of provocation extremely broad and easy for the defendants to successfully apply the defence of provocation. Therefore when the CJA, 2009 came into force and abolished the defence of provocation, it included two different types of Triggers s.55 (3) and s.55 (4) (a) (b). In order for Maria to use the defence of loss of control she has to qualify under at least one or both of the triggers. These triggers are often referred to the Fear trigger and Anger trigger. Each trigger will now be discussed in turn to see if Maria has a QT. Trigger 1- s.55 (3) CJA, 2009 â€˜the Fear triggerâ€™ Makes it very clear that fear or fear of serious violence would be a qualifying trigger and, that fear of serious violence could be either against yourself or against a third person (typically a child or a vulnerable person rather than other people in general). With Maria there is no evidence of previous history of violence, nor is there evidence of Mariaâ€™s fear from serious violence or abuse. Therefore Maria would be unable to use s.55 (3). Nevertheless this is a subjective test, therefore it is down to Marie to show that she honestly feared serious violence. Trigger 2- s. 55 (4) (a) (b) CJA, 2009 â€˜the anger triggerâ€™ In the old defence of Provocation anything that was said or done might amount to provocation, which resulted in the defence being very broad and open for interpretation. Moreover the defence of provocation was down to the jury to decide, however under the new law s.54 (6) CJA, 2009, Judicial control has been given back to the Judge, in determining whether a jury can reasonably conclude that the words or conduct constituted to circumstances of an extremely grave character (Allen
, 2013). This change has tightened the rule and made it more difficult for the defence of loss of control to succeed as, s.55 (a) states the things that are done or said have to amount to â€˜circumstances of an extremely grave character. Therefore the defendant will be relying on what has been said or done and not the fear or serious violence. Subsection (b) indicates that what has been said or done has caused the defendant to have a justifiable sense of being seriously wronged. Therefore only if Marieâ€™s act of throwing the vase at Johnâ€™s head, after his taunts that she has â€˜ruined his life and that she is repellent to him physicallyâ€™, that their marriage is â€˜a ridiculous charadeâ€™, and the money they have saved for their daughters university has now been spent on his gambling habit, is an extremely grave character which caused her to a justifiable sense of being wronged, then the anger trigger would apply. However there are limitations on these triggers, s.56 (6) (a) (B) CJA (2009), indicate that you cannot have these qualifying triggers if they are self-induced, meaning that, if Marie had started the quarrel and is the provoker, whereby she had made the victim retaliate with violence and or abuse, then the defence will fail. However as already discussed there was no act of violence from John towards Marie, therefore this limitation would not apply to Marie and s. 55 (4) (a) (b) would still allow the defence of loss of control. However there is one other limitation s.56 (6) (c) CJA, 2009 which indicates that if there is any sexual infidelity then the defence to be disregarded. The old law of provocation would allow sexual infidelity however in Smith (Morgan James)
(2000) in the dictum form Lord Hoffman states that: â€œâ€¦Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted on the woman herself or on her new loverâ€¦â€ However some argue against Lord Hoffman saying that sexual infidelity is the very thing that cause sudden temporary loss of control as the killing is carried out on: 1. a spare of the moment, 2. the extremely grave character of the victim and 3. That the defendant feels justified with his feelings. However this criticism was justified in The Ministry of Justice's Consultation Paper in, 2008 stating that: â€œâ€¦It is quite unacceptable for [D] who has killed an unfaithful partner to seek to blame [V] for what occurred. We want to make it absolutely clear that sexual infidelity on the part of [V] can never justify reducing a murder charge to manslaughter...â€ However in Clinton
 the Court of appeal considered whether or not sexual infidelity is wholly excluded from consideration as a permissible qualifying trigger within s.55. Judge CJ stated that: â€œâ€¦ the legislation was designed to prohibit the misuse of sexual infidelity as a potential trigger for the loss of control in certain circumstances in which it was thought to have been misused in the former defence of provocationâ€¦ in short sexual infidelity is not subject to a blanket exclusion when the loss of control is under considerationâ€¦to compartmentalise sexual infidelity and exclude it when it is integral to the facts as a wholeâ€¦is unrealistic and carries with the potential for injusticeâ€¦â€10 Meaning that sexual infidelity can be taken into account despite what has been stated in statute. Where it is a part of a pattern of behaviour, part of the whole version of events which is related to this killing. However the courts said that if it is only sexual infidelity that you is being plead then s.55 (6) (c) still applies. It is only when there is a pattern of behaviour which forms part of the whole version of events you can disregard it. Therefore from the evidence given, tells us that John hid his sexual orientation his whole adult life, therefore the whole time he was married to Maria. Maria has been completely unaware of his homosexuality until very recently when he discloses this to her. Therefore there is no pattern of behaviours and, as stated previously no evidence of violence which would also show a pattern for this QT to grip onto. Thus s.55 (6) (c) would disregard Mariaâ€™s s.55 (4) trigger and plea of loss of control. The Objective test It is still important to explore the third element of loss of control s.54(3) supplements s.54(1)(c) by explaining that the defendants circumstances leading up to the killing will be included except those factors that relate to the defendantâ€™s tolerance and his ability to exercise self-restraint. Therefore it requires someone of the same age and sex as Maria, with a normal degree of tolerance and self- restraint and in the same circumstances as Maria, might have reacted in the same or similar way s.54 (3) CJA, 2009. Thus if the defendant has a history of violence or prone to be short-tempered, the test will not permit the defendant to rely on the loss of control defence. This is the objective test which follows the decision in Holley
 whereby â€˜toleranceâ€™ was the new addition to the CJA, 2009 and self-restraint was kept from the abolished provocation defence. However if this third element looks at the circumstances and the characteristics of the defendantâ€™s, it would highlight that Mariaâ€™s circumstances impairs her capacity to exercise a normal level of tolerance and self- restraint, which would not be classified as a normal person s.54 (3). Therefore as Maria was extremely stressed she would not attribute to a normal person. Thus the defence of Loss of control would be unsuccessful. To Conclude Maria would be unsuccessful in her plea the partial defence for loss of control, however would potentially be able to plea for the partial defence of diminished responsibility under s.2 (1) The Homicide Act, 1957, as amended by s.52 of the CJA, 2009. Due to having extreme stress which is a recognised mental health condition, which can alter your behaviours and can make you verbally and physically aggressive, the feeling of anger, depression, anxiety and fear to name just a few However it will be for the jury to decide whether her stress was a significant contributing factor in causing her to throw the vase at John which caused his fatal injuries. Bibliography 1
 R v White (1910) 2 KB 124 CA  R v Smith (1959) 2 QB 35  The Coroners and Justice Act (2009)  R v Duffy (1949) 1 AII ER 932  R v Humphreys (1995) 4 AII ER 889  R v Davies (1975) 1 QB 691  Allen. M (2013) Textbook on Criminal Law.
Oxford: Oxford University Press, 12th
Ed, page 338-339.  R v Smith (Morgan James)(2000) 3 WLR 654.  Baird.N (2010) Criminal Law online.http://www.criminallawonline.com/artcontrol.php
 R v Clinton (2012) EWCA Crim 2  Attorney General for Jersey v Holley (2005) UKPC 23  Mental health foundation (2014) http://www.mentalhealth.org.uk/help-information/mental-health-a-z/S/stress/