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toricazaly
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Diminished responsibility - New law
- Abnormality of mental functioning
- Caused by a recognised medical condition
- Substantially impairs D's ability to (i) understand the nature of their act (ii) form rational judgement (iii) excercise self control
- The abnormality must provide some explanation for the killing but doesnt have to be the only one
- - NOT ALLOWED IF INTOXICATED.
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Loss of control - New law.
- D must suffer from a loss of control but this doesnt have to be sudden
- 2. D's loss of control must be caused by one of the qualifying triggers which included (i) fear of violence to self or someone else (ii) things said or done (iii) combination of things said and done provided they are sufficiently grave to cause the D to have a justifiable sense of being wronged.
- 3. An objective test applied which takes into account the age and gender of D and the gravity of the situation which D believes they are in.
- Excludes infidelity; revenge killings and honor killings; self induced provocation
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Diminished Responsibility old law
- Abnormality of mind
- Caused by one of the specified causes which included (i) arrested or retarded development (ii) an inherent cause (iii) illness or injury
- so that it substantially impaired D's mental responsibility
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Loss of control old law
- D must be suffering from a sudden and temporary loss of control
- Caused by things said or done or a combination of both
- The jury would apply a reasonable person test to decide if they would have killed in the situation D was in.
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Improvements and reform on element 1 of loss of control
- Good to remove the suddenness as this discriminate against women - especially those who are in violent relationships - Aluwahlia would now most likely get the defence
- Reform: Not entirely clear about what type of delay/cooling of period might be allowed? Still seen as the longer the delay the less likely to get it
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Improvements and reform on element 2 of loss of control
- Trigger are now more specific and narrowers then the old law
- The fear of serious violence may help victims of domestic violence and also those people like Tony martin who used too much force
- New law means that people cannot now use any behaviour as evidence of provocation - Doughty - would not get defence, Camplin would still get the defence.
- It means thoses who kill in fear and truly deserve a defence will still get it
- HOWEVER still focuses on the defendant and ignores the victim
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Improvements and reform on element 3 of loss of control
- It was a problematic test for the courts before as they had seemed to go too far as it was supposed to be an objective test but got changed to a subjective test and had too many characteristics that they essentially became the D - (reasonable gluesniffer - Morhall)
- AG for jersey V Holly rained it back in just to age and gender - ignoring president - this caused confusion on who to follow
- New law more clearer and does not include racism.
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Improvement of the exclusions of loss of control
- Sexual infidelity - provided protection for women with violent partners who use loss of control as an excuse
- However many judges disagree and feel in unrealistic - shown in Clinton as at first instance they ignored the sexual infidelity and on appeal the CA said that this direction had been wrong - now postition is unclear.
- Self-induced provocation - improvement as only right that those who cause the situation and then kill when the situation is turned on them, no longer get the defence
- Revenge attacks - introduces more or a moral element into the defence (only for fear)
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Improvements and reform on element 1 of diminished responsibility
- New law is more in line with current medical practice and terminology
- Seems broader then mind
- Unsatisfactory - New act doesnt explain what abnomality of mental functioning means - courts have to interpret.
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Improvements and reform on element 2 of diminished responsibility
- Much more broader then 3 specific types
- Allows law to develop and include newly diagnosed conditions
- Removes obsolete and insulting wording like 'retarded'
- Clearer and easier for battered women
- Likely courts like will accept some conditions recognised under the old common law.
- ? - not clear what medical conditions will be included and the courts have already exercised some discretion - Dowds
- Mercy killings are now excluded - which is seen as a good thing
- Delayed maturation is not a recognised medial condition so a teenagers with a delayed maturation could wrongly be denied a defence.
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Improvements and reform on element 3 of diminished responsibility
- Old law was vague and new law is more specific
- ? - New law again failed to explain what 'substanially impairs' means and we will have to fall back on common law explanations - a matter for a jury therefore may lead to inconsistencies.
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Improvements and reform on element 4 of diminished responsibility
- Did not exist in the 1957 act
- ? - its an improvement as it limits the availability of the defence - meaning that only people who killed because of the abnormality get it - must be a causal link.
- Reform: should it be the only explanation for the killing?
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DR and intoxication
Alcohol dependence syndrome will be included - Woods but not acute voluntary intoxication - unclear?
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DR and women in abusive relationships
- Should be easier for women to get now - Aluwahlia - so situation has improved for them
- However they will still face the stigma of the label of mental abnormality and are still criminalised which will impact on lives.
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Cases from old law relevant to loss of control
Clinton -
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