loss of control

• D may be able to plead the partial defence of loss of control created under s54-s55 of the Coroners and Justice Act 2009

  the burden of proof is on the prosecution s54(5) to disprove beyond all reasonable doubt that the D lost control, but only when D has provided sufficient evidence that a loss of control occurred - R v Jewell
• s54(1)(a) = it must be shown that D lost his self-control at thetime of killing but it need not be sudden under s54(2) - R v Dawes

  s54(4) specifically invalidates the defence where the killing is motivated by a considered desire for revenge - Ibrams and Gregory
• s54(1)(b) = must be shown that D lost their self-control due to a qualifying trigger. the qualifying triggers are contained in s55.

  under s55(3) = a qualifying trigger can be a fear of serious violence against D or another identifiable person - R v Ward and R v Lodge and Mustafa -> this is a subjective test and it doesn't matter that the fear was unreasonable as long as it is genuine
• s55(4) = it can be things said or done which constitute circumstances of an extremely grave character and cause D to have a justifiable sense of being seriously wronged as in R v Hatter - justifiable = objective test and would be decided by jury

  s55(5) covers situation where both triggers are present
• s55(6)(a)(b) = D's fear of serious violence is to be disregarded if D incited something to be done or said to provide him with an excuse to use violence - R v Dawes where Lord Judge LC said the defence is barred where D's actions were intended to provide him iwth excuse or opportunity to use violence
• s55(6)(c) = anything said or done in connection with sexual infidelity to be disregarded

  however, in R v Clinton, Lord Judge concluded that if the sexual infidelity is the only trigger then it should be disregarded as a qualifying trigger but if it is not the only one then it can be taken into consideration under the qualifying trigger as it is integral to the facts and form part of the context
• s54(1)(c) = must be shown that a person of d's own age and sex with a normal degree of tolerance and self-restraint and in D's circumstances, might have reacted in the same or similar way - this is the objective test that will be determined by the jury.

  s54(3) = all the D's circumstances can be considered except those that impact upon d's ability to be tolerant and have self-restraint - R v Asmelash