Criminal Law (2014): Murder + Loss of Control

David is a member of an ethnic and religious group that generally considers an emotional attachment to someone from outside that group as an affront to the family honour deserving of death. He discovers that his young daughter, Vicky, is planning to run away with Jerry, who is from outside the group. David and his son Peter confront Vicky and challenge her to deny the charge. She admits it and David and Peter in fury kill Vicky. They then find Jerry and attack him with an iron bar fracturing his skull. Jerry manages to escape and presents himself at hospital almost unconscious. The nurse on duty, thinking Jerry is drunk, has him removed from the premises. He is left on a bench outside the hospital. An hour later he dies. If he had been treated immediately, he would have survived.
Discuss.

General remarks
This is a question on murder with issues relating to causation and the partial defence of loss of self control.

A good answer to this question would…
include the following indicative elements.

• Identify offence – murder.
• Definitions.

Jerry

• The major issue is causation. Is the action of the nurse a novus actus interveniens (e.g. Cheshire, Smith, Jordan).
• Assuming it is not, can loss of self control be relied upon?

Vicky and Jerry
The issues relating to both Vicky and Jerry are similar.

• Was the killing the result of a loss of self control (s.54(1)(a))? Note that more of a cooling off period exists regarding Jerry.
• Is affront to family honour sufficiently grave to cross the first hurdle in relation to the ‘qualifying trigger’? Assuming it is, they have a justifiable sense of being seriously wronged (i.e. s.55(1)).
• A good answer will make particular reference to the cultural context and consider whether this is to be taken into account in deciding whether the context is grave and their sense of being seriously wronged justifiable.
• This ethnic/religious context is also relevant to the objective element in the defence. Would ordinary people with a normal degree of tolerance and selfrestraint and in the circumstances of D have reacted in this way? Is the ethnic and religious grouping to be taken into account on either or both of these matters?

Poor answers to this question…
tended to simply state the statutory provision without grappling with the specific issue of the ethnic/religious context, or ignored the defence altogether and concentrated simply on talking about murder and causation. A significant minority of candidates even proposed insanity or diminished responsibility as the appropriate defence. This was disappointing. Although legal doctrine dictates case outcomes this does not mean a lawyer is entitled to leave their common sense at home!

Student extract
The legal issue to consider whether David and his son Peter are liable for Vicky’s and Jerry’s death, and if they can rely on any defences. In relation to Vicky’s death one can clearly construe it be murder.

Murder is the unlawful killing of a human being with intention to kill or cause grievous bodily harm. Moloney Here Vicky is a human being and they kill her unlawfully. It is ambiguous if they had specific intent to kill because the question merely says “in fury kills Vicky”. Therefore they may be able to rely on the defence of loss of self-control and reduce the charge of murder to voluntary manslaughter.

This is given in the coroners and Justice Act 2009, section 54 (1) where a person kills or is a party to the killing of another, D.D not to be convicted of murder if, a) there was a loss of self-control, b)had a qualifying trigger and is in line with c)the evaluative test.

Here both Peter and David were parties to the killing of Vicky and they did have a loss of self-control since they “in fury kill Vicky”. Therefor S.54(1)(a) is satisfied.

Secondly we must see that they can rely on any qualifying triggers given in section 55. Here the most appropriate provision would be S. 55 (4). This done or said both which a) constituted circumstances of an extremely grave character and b) cased to have a justifiable sense of being seriously wronged. Here David and Peter felt that they were seriously wronged by what Vicky had done, by going against their extreme religious beliefs by having an emotional attachment of (Jerry) someone outside their group. However the issue is that it is already a known fact that anyone who commits the above felony will reserve a “deserving death”. If the prosecution brings this fact and claims that there was no loss of control resulted by a qualifying trigger since death was a sure result plan, David and Peter will not be charged with murder. However if the jury believes otherwise the provision of S.54(1)(b) will be satisfied through S.55 (4). Moreover there are no limitations mentioned in S.55 (6) since Vicky did not incite her own death.

Finally we must see whether according to S.54(1)(c) a person of D’s sex and age with a normal degree of tolerance….. will act in the same way as D. This is a controversial issue. Since it is unlikely for a reasonable person would “kill his own daughter/sister just because she got emotionally attached to someone they disprove of. Therefore it is unlikely this defence will be satisfied. However as S.54(5) says the jury must assume the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Comment on extract
This extract contains what is needed for a very good answer. There is a problem with the analysis of ‘specific intent’ in that fury would not negate such intent but this is a minor quibble given the overall quality of analysis.

It deals with the issues methodically and reasons its way through to a conclusion. Thus it states that the fact that Peter and David ‘killed in a fury’ is evidence that they lost their self control. It also reasons that the prosecution might counter the claim that the loss of self control resulted from a qualifying trigger by reasoning that this was effectively an execution in the manner of an honour killing (‘deserving death’/‘sure result plan’). This could have been expressed better but the point was nevertheless made. Few other candidates went so deeply. Finally it makes the point that it is unlikely the court will accept the idea that s.54(1)(c) is satisfied since the reaction to the breach of honour is very extreme.