VOL MAN- Loss of control

• Learning Objectives


  • Explain the partial defence of loss of control (s.54 of the Coroners and Justice Act 2009) and discuss the relevant law
  • Apply the law of this defence to a problem scenario using the IRAC method
  • Critique the old defence of provocation
• Introduction to loss of control


  1. D needs to demonstrate:

  2. Acts or omissions in killing resulted from loss of self-control

  3. The loss of control had a qualifying trigger

  4. A person of D's sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, might have reacted in the same/similar way
• Provocation


  The old defence which was justifiable (in the jury's opinion) and sudden loss of temper/control, resulting in death, following a provoking – irritating - incident
• Problems with the old defence of Provocation


  • Needed to evidence a sudden and temporary loss of control
  • Excluded victims of ongoing abuse (e.g. women experiencing domestic violence) and therefore argued to be discriminatory
  • Wide range of behaviour that could be classed as provoking
  • The role of the jury in deciding when the killing of another in response to provocation was justifiable
• 'Slow burn' reactions


  Under section 54(2) Coroners and Justice Act 2009, loss of control no longer has to be sudden
• The Three Elements of Loss of Control


  • D's role in the killing must have resulted from a loss of self-control
  • D's loss of self-control must have been caused by a qualifying trigger
  • A hypothetical person of D's age and sex, might have reacted in the same way
• Burden of proof


  The prosecution must prove beyond reasonable doubt that one or more of the 3 elements of loss of control are absent
• 'Revenge' exclusion


  S.54(4) Coroners and Justice Act 2009 provides that D must not have acted in revenge
• Element A: D must have lost self-control


  D's conduct (which caused V's death) must have resulted from a lack of self-control. Subjective requirement - about whether D lost self-control and irrelevant whether a reasonable person in D's position would have done so or not
• Element A: Loss of Self-Control


  Loss of self-control required extreme emotion and/or loss of rationality but not more than this. The loss of ability to act in accordance with considered judgment or a loss of normal powers of reasoning
• Element B: There must be a qualifying trigger


  Section 55 Coroners and Justice Act 2009 lists only two 'qualifying triggers': Fear of serious violence s.55(3) and/or Things done or said (or both) of a grave character and caused the defendant to have a justifiable sense of being seriously wronged s.55(4)
• Trigger 1: Fear of serious violence from V


  Arises where D loses self-control in fear of serious violence against herself or another identified person e.g. her child. Subjective requirement: D must react to a genuine fear of serious violence
• Exclusion to the first trigger


  Where D has consciously incited V to act in a way which causes D fear, the 'fear of serious violence' trigger will not apply
• Trigger 2: A sense of being wronged by things said or done


  D loses self-control as a result of a justifiable sense of being seriously wronged by things said or done of an extremely grave character. Partly subjective - D must feel personally seriously wronged. Partly objective - The feeling of being wronged must be objectively justifiable and grave
• Exclusions to the second trigger


  D cannot rely on things said or done where she has incited them in order to be violent to V. S.55(6)(c) excludes things said or done which constitute 'sexual infidelity'
• Element 3: A person of normal tolerance and self-restraint might have reacted similarly


  Objective standard. Designed to demonstrate that D's offence was not a result of evil character. This is not to say that D acted correctly!
• Problem with the objective standard for Element 3


  Is a fixed standard of behaviour required? That of a 'normal' human. Or should certain characteristics of the D be taken into consideration, which could affect what is a 'normal' degree of self-restraint for him/her?
• Section 54(1)(c) refers to 'the circumstances of D', which implies that all D's circumstances are relevant. This would be contrary to the principle established in the landmark case of Holley!
• Under s.54(3), circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded
• Applying this defence using the IRAC format

  • Identify the contentious/legal issues in the scenario
  • Define and explain the relevant area(s) of law
  • Apply the law to the facts of the problem scenario
  • Conclude