Delia has two kinds of defences available to her. She can
either plea for a loss of control or for diminished responsibility to defend herself
against murder. If the defence is accepted by the courts Delia will be charged
with voluntary manslaughter rather than murder. Voluntary manslaughter is where
the offender (Delia) intended to kill or cause serious harm, however is not
guilty of murder due to either provocation or mental incapacity; this is where
the defences of loss of control and diminished responsibility come in. If a
defence is successful and her sentence to murder is quashed and is sentenced to
voluntary manslaughter instead she will receive a lesser sentence and spend
less time in prison. Furthermore, if Delia pleads guilty to voluntary
manslaughter and uses one of the defences early on the judge can reduce the
sentence by up to a third, only if this plea is given to the judge early in the
trial.

 

Loss of control comes from S.54 (1)(a) of the Coroners
and Justice Act 2009. It came into force on 4 October 2010 replacing the
partial defence of provocation with loss of control. There are three main
components that Delia must comply with for a loss of control plea to be
successful. The components are as follows; Did D suffer a loss of control? Was
there a qualifying trigger? And the objective test. The first component, did D
suffer a loss of control. As Devlin J had stated, the defendant had to have
reached the point at which he was ‘no longer master of his mind’, yet that
meant that ‘in one way, he lacked the full mens rea”1.  It does not matter whether or not the loss of
control was sudden.2
This is beneficial to Delia’s case as the main question is did she lose
self-control. Here she can refer to her ‘volatile relationship’ and how the
night of the killing she had been hidden in her room for hours to then find
Cyril asleep when she killed him. However, the prosecution may refer to S.54(4)
which states that ‘subsection (1) does not apply if, in doing or being a party
in the killing, D acted in revenge.’ 3 This would mean that Delia
was out for revenge when killing Cyril and would prevent her from receiving the
defence of loss of control. But from the evidence of that night Delia was
hiding in her room then packed her bags in preparation to leave Cyril and go to
stay at her sister’s house, this indicates that she in fact was not planning a
revenge attack and had all intentions of leaving to go to her sisters. If there
is sufficient evidence to raise a defence of loss of control, the burden of
proof is on the prosecution to disprove loss of control.4 This would mean it is on
the prosecution to disprove Delia’s loss of control.

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The second requirement under s.54(1)(b), was there a
qualifying trigger in Delia’s case? There are two qualifying triggers under
s.555,”Fear” trigger s.55(3) ”Anger”
trigger s.55(4), or a combination of them both is sufficient s.55(5) to
successfully have the defence of loss of control. The main trigger in this case
would be fear, however it could be argued there is an anger trigger in here
also. It is a known factor that Cyril and Delia had a ‘volatile relationship’
and on numerous previous occasions, Cyril had struck Delia in the course of an
argument, resulting in Delia being hospitalised with broken bones and bruising.
This alone is enough to make Delia be fearful of Cyril as she would fear what
he would do to her next when they had an argument. Evidence for this is,
because of the regular abuse Delia is now suffering from depression and Is
always timid and nervous. Her change of character highlights her fear and how
nervous she feels in case she upsets Cyril as she knows he has no limits on
what he will do to her. Adding to this an obvious factor is that she will feel
angry with Cyril about everything he has done to her and how he has been making
her feel. Therefore, on the night of the killing when Cyril tells Delia he will
deal with her later, after striking her in the face, the fear would take over
her. She would clearly be fearing what he means by he will ”deal” with her,
what he was going to do to her.

 

The objective test is the third requirement of loss of
control. This is a test that determines whether a person of D’s sex and age
with a normal degree of tolerance and restraint and in circumstances of D have
reacted in the same or similar way? S.54(3)6 In this case Delia’s
circumstance is a major factor leading to why she killed Cyril. He was a
regular abuser to Delia causing her to face serious harm. Humphreys (1995) is a
case which holds similar facts to this. A had beaten H on a number of
occasions. One-night H was so scared of A coming home drunk and forcing her to
have sexual intercourse with her and she slits her wrists. When A returns home
he taunts her for not doing a good enough job cutting her wrist, whereupon H
stabbed and killed him. H relied upon the defence of provocation (old common
law) and on the history of her relationship. The court allowed her application
and where the verdict of murder would be replaced with one of manslaughter.7 This evidence shows that
other women that have been regularly abused change characters and act in
similar ways.

Although Delia could argue
for a partial defence of loss of control, the defence of diminished responsibility
is more applicable to this case. Diminished responsibility is a partial defence
to murder only which will reduce Delia’s conviction of murder to one of voluntary
manslaughter. Section 2(1) of the Homicide Act 1957 provides that

“Where
a person kills … he shall not be convicted of murder if he was suffering from
such abnormality of mind (whether arising from a condition of arrested or
retarded development of mind or any inherent causes or induced by disease or
injury) as substantially impaired his mental responsibility for his acts and
omissions in doing or being a party to the killing.”8

To have a successful plea
Delia would need to prove she has an abnormality of his mental functioning, as
with this defence the legal burden of proof is on the defence. Therefore, it is
up to Delia and her legal advisors to prove she was suffering from
abnormalities at the time of the killing. S.2(1)(a) Homicide Act 19579 states that the
abnormality of the defendant arose from a recognised medical condition. The facts
of this case show that as a result of their volatile relationship Delia
developed depression. This would have impaired her ability to exercise self-control,
which is a factor of S.2(1A)(c) Homicide act10 as evidence that the defendant
has a diminished responsibility. Delia would also be eligible to argue that she
has battered woman syndrome. This is a syndrome women develop after being
repeatedly beaten by their partners. An example of a BWS case is R v Hobson 1998.
This is a case that appeared in front of the court of appeal. The facts of this
case are, Hobson was first on trial in 1992, and was found guilty of the murder
of her husband. She was regularly abused but BWS wasn’t seen as a condition
until 1994. Therefore she requested an appeal in 1998 to highlight that she was
a victim of battered women syndrome and that she killed her husband as a result
his violence. The court quashed her sentence of murder.11  Also for this defence the substantial impairment
test needs to be successful. The question for the jury would be To what extent is D answerable for his acts in light of
his state of mind and ability to exercise self-control? It is obvious that
Delia’s state of mind wasn’t stable at the time of the killing due to her BWS
and her depression that formed from her husband’s violent behaviour.

After
looking at all the facts of Delia’s case it would be wise to plead guilty at
the very beginning of the trial, guilty to voluntary manslaughter under the
defence of diminished responsibility. This is due to the evidence she can use
of the BWS which is taken seriously in the courts, and also the fact she
developed depression during the period she was with Cyril. Both of these
conditions would have caused her to have an abnormality in her mental
functioning meaning she wouldn’t be able to have a stable state of mind. Loss
of control could also be a successful defence. Delia has both the fear and the
anger trigger to rely upon in her case. The case of Humphrey’s is evidence to
support Delia in passing the objective test and that BWS has a strong effect on
women’s personalities and how they make judgements on their actions.

1
Law Commission, Partial Defences to Murder (Law Com. CP No 173, 2003) Para,
4.28.

2
S.54(2) C&J Act 2009.

3
Ibid, (4)

4
Above 2, (5)

5
S.55 C&J Act 2009.

6
S.54(3) C&J Act 2009.

7
West law, R v Humphreys (Emma) 1995

8 Westlaw.

9
S.2(1)(a) Homicide Act 1957

10 Ibid,
S.(1A)(c)

11
Westlaw, R v Hobson 1998