what did the crown prosecution say about loss of control?
‘the defence itself is self-contained and its common law roots are irrelevant.’
what is the first element?
loss of control
where was the first element defined?
s54(a)
what was said in s54(a)?
defendant’s acts or omissions in doing or being party to the killing resulted from the defendant’s loss of control
what was confirmed in jewell?
a loss of ability to act in accordance with considered judgement or a loss of normal powers of reasoning
what was said in s54(2)?
it does not matter whether the loss of control is sudden
what was said in s54(4)?
loss of control is unavailable if, in doing or being party to the killing, the defendant acted in a considered desire for revenge
what is the second element?
qualifying trigger
what did the crown prosecution service say in relation to s54(4)?
the defence is not available to those who act in a considered desire for revenge. this is so, even if the defendant loses self-control as a result of one of the qualifying triggers
where are the qualifying triggers contained?
s55 coroners and justice act 2009
what are the accepted triggers?
the fear trigger, the anger trigger, or both
where is the fear trigger defined?
s55(3)
what is the fear trigger?
the defendant faced serious violence from the victim against himself or another identified person
is the threat of violence on another a sufficient qualifying trigger?
yes
what type of test is the fear trigger?
subjective
where is the anger trigger defined?
s55(4)
what is the anger trigger?
there were things said or done (or both) which: (a) constituted circumstances of an extremely grave character, and (b) caused defendant to have a justifiable sense of being seriously wronged
how many elements must be proven for the anger trigger?
both
what type of test is the anger trigger?
objective
what was confirmed in r v hatter?
the break-up of a relationship will not normally constitute circumstances of an extremely grave character nor entitle the aggrieved party to have a justifiable sense of being seriously wronged
what was confirmed in s55(6)?
loss of control is not available if the defendant incited the victim to do the act that qualified as a trigger
what was confirmed in dawes?
unless the defendant is seeking an opportunity to use violence, loss of control is still applicable
what was confirmed in s55(6)(c)?
the fact that a thing done or said constituted sexual infidelity is to be disregarded
what was confirmed in r v clinton?
where there is no other qualifying trigger, sexual infidelity is excluded but, along with other triggers, it could be considered
what is the third element?
a person of the defendant’s sex and age, with a normal level of tolerance and self-restraint, in the circumstances of the defendant, would have reacted in the same or similar way
what type of test is element 3?
largely objective but considers circumstances of the defendant
what is confirmed in s54(3) in subsection (1)(c)?
the reference to ‘the circumstances of the defendant’ is a reference to all of the defendant’s circumstances other than those whose only relevance to the defendant’s conduct is that they bear on the defendant’s general capacity for tolerance or self-restraint
what was confirmed in r v rejmanski?
mental disorders are not considered circumstances of defendant where it only affects self-control