Loss of control

• Introduction:

  • Special partial defence
  • Introduced by S.54 Coroners and Justice act 2009
  • Only available to murder, reduces liability to voluntary manslaughter
  • D must provide sufficient evidence - Clinton - 'reasonably conclude the defence might apply'
  • Gulpinar - 'each of the three components'
  • Not just because asserted 'i lost control' (Jewell)
  • Complete discretion sentence
• Loss of self-control:

  • Under S.54, the central requirement
  • Must be a total loss of control, a partial loss is not sufficent
  • No statutory definition
  • Jewell - D lost in accordance with considered judgement
  • D must 'snap' not have a temper
  • S.54 confirms this loss of self-control not occur immediately after the qualifying trigger (shock)
• Loss of control:

  • Quicker that D reacts, more likely to be a genuine reaction
  • S.54 (4) LOC cannot be used in cases where D acted out of their 'considered' desire for revenge
• Trigger 1 - 'fear of serious violence'

  • S.55 - fear trigger applies if Ds loss was attributable to Ds fear of serious violence from V towards D or another identified person
  • Subjective test
  • Need to show they genuinely feared that V would use serious violence against themselves, or another (Ellis - brother)
  • Trigger is therefore available to people who cannot raise SD making it available to domestic violence (E.g, asleep)
• Trigger 2 - 'a thing or things done or said':

  • Anger trigger applies where D reacts to something done or said (Or both)
  • Objectively assessed
  • Jury must be sure that things said/done gave D justification to kill
  • Juries must decide the circumstances of extremely grave character and cause D to have a justifiable sense of being seriously wronged (R v Clinton)
• Trigger 2:

  • Defence would be available to sexual abuse and humiliation (DPP v Camplin)
  • Cumulative impact of things said/done can be considered (R v Dawes)
• Combination of trigger 1 and 2:

  • S.55 (5) makes specific reference that loss of control could be triggered by both fear of serious violence and anger in response to things said/done
  • R v Dawes - 'unlikely to be many cases where fear of violence will arise in total isolation from things said/done'
• Self-inflicted triggers may be relied upon:

  • Under S.55 (6) (a) and (b) even if D has a 'fear of serious violence' and 'things done or said' and has a loss of control
  • They will not be able to rely on the defence if trigger was self-inflicted
  • D incited something to be said or done 'for the purpose of providing an excuse to use violence' (R v Dawes - incited violence)
• Sexual infidelity:

  • S.55 (6) (C) specifically states that (Alleged) sexual infidelity cannot be used as evidence of trigger 2
  • Goverment implied a blanket ban, CA has interpreted this section in a slightly broader way
  • Cannot amount to qualifying trigger, but it is not to be disregarded completely
  • R v Clinton - not SI that alone triggered reaction
  • R v Dawes - sexual infidelity alone cannot be used as a trigger but integral to providing context, the exclusionary rule does not apply
• 'Normal' person test:

  • S.54 explains that whatever trigger is relied upon, D will be able to show that 'a person of Ds age and sex with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D'
• A person of Ds age/sex with normal degree of tolerance and self-restraint:

  • D will be judged against someone with a normal degree of tolerance and self-restraint that is appropriate for their gender/age
  • Ellis - worked for 14 year old not 23 year old
  • 'normal degree of self-restraint' means that irrational prejudices such as racism/homophobia are excluded
  • 'Normal degree of self-restraint' - means characteristics such as a bad temper and aggression are excluded from the 'normal person' test
• Person of D:

  • Being intoxicated can obviously reduce someone tolerance and self-restraint
  • Jury should consider whether a sober person would have reacted the same way (Asmerash - caused him to act in a way which he would not have acted if sober - 'Irrelevant consideration')
• Circumstances of D:

  • Only age and sex are relevant
  • When assessing whether a normal person would have reacted, S.54 CAJA 2009 requires that the normal person can be placed 'in the circumstances of D' to provide necessary context
  • However, will not include circumstances whose only relevance is that they affect Ds capacity for tolerance and self-restraint (R v Gregson)
• Acted in same/similar way:

  • Not enough that a 'normal person' lost their self-control, they also need to be satisfied that the normal person would have gone onto kill V (R v Clinton)