Loss of control

• Where is the defence Loss of Control found?

  s.54 and 55 Coroners and Justice Act 2009
• What was the pre-existing law?


  Provocation
• What is Loss of Control?

  A special partial defence which reduces a murder conviction or voluntary manslaughter
• How was Loss of Control defined in Jewell (2014)?

  "A loss of ability to act in accordance with considered judgement or a loss of normal powers of reasoning"
• What is contained within s.55(6):

  D has the evidential burden and must satisfy the judge that there would be enough evidence for a jury to apply the defence
• What case clarifies that it is for the jury to decide whether or not to apply the defence?

  Clinton (2012)
• What does s.54(1)(a) require?

  That D had a "loss of self-control).
• What case underlines that the loss of control need not be sudden?

  Dawes (2013)
• What were the issues surrounding the "sudden" requirement of the old law on Provocation?

  - It was too restrictive

  - It operated harshly on women who killed their

  abusive partners

  - Ignored that men and women react differently
• Why was D not able to rely on Loss of Control in R v Ahluwalia (1992)?


  Because provocation required a sudden loss of control?
• Had R v Ibrams and Gregory (1981) been tried under the new law of Loss of Control, why would it more than likely not be successful?


  Although the loss of control no longer needs to be sudden, the time delay was far too great
• What case highlights that Loss of Control may still be available despite a long time gap?

  R v Baillie (1995)
• What trigger is contained in s.55(3)?

  Trigger 1: "A fear of serious violence)
• Is the fear trigger tested objectively or subjectively?

  subjectively- D will have to show that they genuinely feared that V would use serious violence
• Why will the fear trigger apply to those who cannot plead self-defence?

  whilst there may have been an anticipated attack, it was not an imminent enough a threat, and hence there was no necessity to use force or because they used excessive force (Martin (2001))
• What are the limitations of the fear trigger?

  - D must fear violence from V as opposed to from a third party

  - D must fear that the violence will be used against D or another identified person (s55(3)
• What happened in Ward (2013)?

  Brothers D and E had spent the day drinking and taking cocaine with V. Spontaneous violence erupted which started when V head-butted E. D then went to his brothers defence, picked up a pick-axe and struck V. V later died. Ds plea of not guilty to murder on the grounds of Loss of Control was accepted.
• What section is the Anger Trigger contained within?

  s.55(4)
• Is the anger trigger tested objectively or subjectively?

  objectively- a jury must be sure that what was said or done gave D a justification to act in the way s/he did
• True or False?

  
  

  The old law of provocation made it extremely difficult to pass the anger trigger

  False- under the law of provocation, virtually any action was capable of being used as evidence of provocation. The action didn't have to be deliberate, nor did it have to be aimed at D. (Betambeau (2001))
• s.55(4) states that the D simply being fearful of violence is not enough. Things said or done (or both) must be...

  - of extremely grave character

  
  

  - must leave D with a justified sense of being seriously wronged
• What was reiterated in Dawes (2013)?

  That the word "justifiably" adds an objectivity to the test in order to limit it as someone may (subjectively) have a sense of being seriously wronged by a seemingly minor insult
• Which cases illustrates that the Coroners and Justice Act 2009 has raised the bar in regard to who would be successful under the anger trigger?

  Zebedee (2012): D killed his 94 year old father who has Alzhiemer's after he soiled himself twice in the duration of 20 minutes. The jury concluded that this did not constitute "circumstances of extremely grave character" sufficient to satisfy the statutory test for a qualifying trigger.
• What is Cumulative Provocation?


  Where a jury would take into consideration anything that had been said/done to D over an extended period of time, in deciding whether D had lost their self-control.
• What case confirms that a Cumulative Impact can be considered?

  Dawes (2013): "The loss of control defense may follow from the 'cumulative impact' of earlier events"
• What is contained within s.55(5)?

  A loss of control could be triggered by both fear of serious violence (T1) and anger in response to things said or done (T2)
• What provocation case highlights how both triggers can be present under s.55(5)?

  R v Humphries (1995) V threatened D with the possibility of another "gang bang" which she had already been a victim of (T1). D became angry when V taunted D over her inability to commit suicide (T2)
• What do s.55(6)(a) and (b) tell us regarding self-inflicted injuries?

  D will not be able to rely on either trigger if the loss of control resulted from the actions of D. If D looks for violence, he will not be successful in his loss of control claim.
• What section tells us that sexual infidelity must be disregarded?

  s.55(6)(c)
• In what circumstance can sexual infidelity be regarded?

  When the sexual infidelity supports Ds loss of control
• What case demonstrates that there is not a blanket exclusion on sexual infidelity as originally thought?

  Clinton (2012): D bludgeoned and strangled his wife after being together for 16 years. V told D that she'd been having an affair and began to taunt him over this. She additionally told D that he didn't have enough courage to kill himself and that he could have their children. D then killed her and took photos of her dead body to send to the man V had had an affair with. Because D didn't kill V solely based on the sexual infidelity, D's claim was successful.
• What happens if the only trigger for Ds loss of control is sexual infidelity?

  It is to be disregarded and D will be convicted of murder.
• What happens if sexual infidelity is "intergral to and forms an essential part of the context? surrounding Ds loss of control?

  Then, alongside other evidence, the sexual infidelity is admissible in support of a trigger. It would be wrong to "compartmentalise" the evidence should this be the case.
• What section is the "normal person test" found?

  s.54(1)(c)
• What does the normal person test consider?

  would a "person of Ds age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of D, have acted in the same or similar way to D?"
• What case confirms that characteristics are not to be regarded in the normal person test?

  Asmelash (2013)
• What circumstances must the "normal person" be placed in?

  "The circumstances of D"
• What case demonstrates how the "normal person" must be placed in "the circumstances of D"?


  R v Gregson (2006): D was unemployed, suffered depression and epilepsy. V taunted him about the unemployment. To D, all issues were connected- he attributed unemployment to his depression and epilepsy. Unemployment is clearly a "circumstance" and so the "normal person" would be unemployed.
• What must the jury be sure of regarding the "normal person" test?

  That not only would the "normal person" have lost their self-control, but they would also have gone on to kill V in the same way that D did.
• How has the new law developed compared to the law of provocation in regards to anger?

  Loss of control now covers situations where D has killed in anger AND situations where D has killed in fear