Chapter 9: Loss of Control

Question 1

What are the grounds for loss of courage to be raised as a defence?

Used to be called ‘provocation’

Answer 1

This defence can only be raised when accused is charged for murder (no murder no LOC)

Question 2

What is the law that governs LOC

Answer 2

Section 54 of the Coroners and Justice Act 2009

Question 3

What are the 3 elements needed in Section 54(1)

Answer 3

Section 54: Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if -

Section 54(1)(a)

• D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self control; and

Section 54(1)(b)

• the loss of self-control had a qualifying trigger; and

Section 54(1)(c)

• 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 or in a similar way to D

All needs to be present to satisfy (cumulatively satisfied)

Question 4

What are the subsections of Section 54

Answer 4

1. Section 54(2)
2. Section 54(3)
3. Section 54(4)
4. Section 54(5)
5. Section 54(6)
6. Section 54(7)
7. Section 54(8)

Question 5

What does Subsection 55 provide?

Answer 5

The meaning of a ‘qualifying trigger’

Question 6

What is the problem with Section 56?

Answer 6

Section 56 is a section to note that both common law and staute before Section 54 have been abolished. And now only utilising Section 54

Must note this when answering question

Question 7

Who bares the burden of proof?

Answer 7

Prosecution needs to disproof LOC beyond reasonable doubt (Woolmington v DPP)

Question 8

What are the 2 limbs (elements) of LOC?

Answer 8

1. Subjective element - was the D provoked to lose his self-control?
2. Qualifying trigger

Question 9

1st limb/element - What are the 3 cases that lay out the traditional definition of Loss of Control

First limb for

Answer 9

• R v Duffy [1949] 1 All ER 932
• R v Ahluwalia
• R v Hayward [1883]

Question 10

Who and what gives the definition of LOC in R v Duffy state?

Answer 10

Devlin J

• “… a sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her for the moment, not a master of his or her own mind.”

IMPORTANT (MEMORISE)

Question 11

Who and what gives the definition of LOC R v Ahluwalia state?

Answer 11

Taylor LCJ in relation to the phrase “sudden and temporary loss of self-control”

• “…to take account of the interval between the provocative conduct and the reaction of the accused to it…”

IMPORTANT (MEMORISE)

Question 12

Who and what gives the defintion of LOC in R v Hayward state?

Answer 12

Tindall CJ

• Provocation must be so recent and so strong and that there must not have been time for the blood to cool ad reason to resume its seat

IMPORTANT

Question 13

What are the 3 types of LOC

Answer 13

1. Mistaken provocation
2. Cumulative provocation
3. “Slow Burn” cases

Question 14

What is the diffrence between cumulative provocation and ‘slow burn’?

Answer 14

Cumulative provocation

• Sudden and temporary at the end of the point, where action/killing happened (R v Duffy)

“Slow Burn” cases

• The interval between the provocative conduct and the reaction is a long period (R v Ahluwalia [1992])

Question 15

What are the 2 cases for cumulative provocation?

Answer 15

1. R v Duffy [1949] 1 All ER 932
2. R v Ibrams and Gregory

Question 16

What is the case for ‘Slow Burn’ cases?

Answer 16

R v Ahluwalia [1992]

Question 17

R v Ahluwalia [1992]

‘Slow Burn’ Case

Answer 17

Facts

1. D was of Asian origin endured years of violence and abuse from her husband
   Through all the years of violence (slow burn) where she lit the husband on fire

Held

1. Convicted as she intended to cause GBH

Note

1. Only after 10 years (2009) Section 54(2) was implemented/recognised, in light of “slow burn”

Question 18

What are the sections relevant for the second element (qualifying triggers)

Answer 18

Section 54(1)(b) & Section 55 of the Coroners and Justice Act 2009

Question 19

What are negative and positive qualifying triggers?

Answer 19

Negative QTs - cannot be used as a defence/excuse (not valid)

Positive QTs - can be used as defence (valid)

Question 20

What sections and subsections that are negatives QTs

&

positive QTs

Answer 20

Negative QTs - Section 55(6)

1. 55(6)(a)
2. 55(6)(b)
3. 55(6)(c)

Positive QTs - Section 55(2)

1. Section 55(3)
2. Section 55(4)
3. Section 55(5)

Question 21

What are the 3 subsections for Section 55(6) - negative QTs

Answer 21

55(6)(a)

• D’s fear if serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;

55(6)(b)

• A sense of being seriously wrong by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;

55(6)(c)

• The fact that a thing done or said constituted sexual infidelity is disregarded

Question 22

What are the 3 subsections for Section 55(2) - positive QTs

Answer 22

Section 55(3)

• This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person (R v Pearson)

Section 55(4)

• This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) -
• a) constituted circumstances of an extremely grave character (R v Doughty [1986]); and
• b) caused D to have a justifiable sense of being seriously wronged (R v Ahluwalia)

Section 55(5)

• This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in Subsections (3) and (4)

Question 23

R v Pearson

Answer 23

Facts

1. Father was mistreating younger sibling
2. Older sibling killed father due to LOC

Held

1. It is not necessary that the threat be actualised, but it is necessary that the fear of serious injury

Question 24

R v Doughty [1986]

Answer 24

Facts

1. Father killed a 17 day old baby as it kept crying
2. He raised the defence of LOC

Held

1. His conviction for murder and life imprisonment sentence were quashed

Takeaway

1. The baby would not be a grave character, let alone extremely grave
2. Today, Doughty would be guilty