Chapter 9: Loss of Control Flashcards
What are the grounds for loss of courage to be raised as a defence?
Used to be called ‘provocation’
This defence can only be raised when accused is charged for murder (no murder no LOC)
What is the law that governs LOC
Section 54 of the Coroners and Justice Act 2009
What are the 3 elements needed in Section 54(1)
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)
What are the subsections of Section 54
- Section 54(2)
- Section 54(3)
- Section 54(4)
- Section 54(5)
- Section 54(6)
- Section 54(7)
- Section 54(8)
What does Subsection 55 provide?
The meaning of a ‘qualifying trigger’
What is the problem with Section 56?
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
Who bares the burden of proof?
Prosecution needs to disproof LOC beyond reasonable doubt (Woolmington v DPP)
What are the 3 limbs (elements) to prove LOC? And what are the respective sections.
- Subjective element - was the D provoked to lose his self-control? (Section 54 (1)(a))
- Qualifying trigger (Section 54 (1)(b); Section 55)
- Objective test (Section 55 (1)(c); Section 54 (3))
What is the relevant section for the first limb of LOC?
Section 54 (1)(a)
- Was the D provoked to lose his self-control?
1st limb/element - What are the 3 cases that lay out the traditional definition of Loss of Control
First limb
- R v Duffy [1949] 1 All ER 932
- R v Ahluwalia
- R v Hayward [1883]
Who and what gives the definition of LOC in R v Duffy state?
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)
Who and what gives the definition of LOC R v Ahluwalia state?
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)
Who and what gives the defintion of LOC in R v Hayward state?
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
What are the 3 types of LOC
- Mistaken provocation
- Cumulative provocation
- “Slow Burn” cases
What is the diffrence between cumulative provocation and ‘slow burn’?
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])
What are the 2 cases for cumulative provocation?
- R v Duffy [1949] 1 All ER 932
- R v Ibrams and Gregory
What is the case for ‘Slow Burn’ cases?
R v Ahluwalia [1992]
R v Ahluwalia [1992]
‘Slow Burn’ Case
Facts
- 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
- Convicted as she intended to cause GBH
Note
- Only after 10 years (2009) Section 54(2) was implemented/recognised, in light of “slow burn”
What is the second limb for LOC? what are the 2 relevant sections. (qualifying triggers)
What arre “qualifying triggers”
Section 54(1)(b)
- Provides LOC must be due to certain “qualifying triggers”
Section 55
- Provides the meaning of acceptable “qualifying triggers”
What are negative and positive qualifying triggers?
Negative QTs - cannot be used as a defence/excuse (not valid)
Positive QTs - can be used as defence (valid)
What sections and subsections that are negatives QTs
&
positive QTs
Negative QTs - Section 55(6)
- 55(6)(a)
- 55(6)(b)
- 55(6)(c)
Positive QTs - Section 55(2)
- Section 55(3)
- Section 55(4)
- Section 55(5)
What are the 3 subsections for Section 55(6) - negative QTs
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
What are the 3 subsections for Section 55(2) - positive QTs
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)
R v Pearson
Facts
- Father was mistreating younger sibling
- Older sibling killed father due to LOC
Held
- It is not necessary that the threat be actualised, but it is necessary that the fear of serious injury
R v Doughty [1986]
Facts
- Father killed a 17 day old baby as it kept crying
- He raised the defence of LOC
Held
- His conviction for murder and life imprisonment sentence were quashed
Takeaway
- The baby would not be a grave character, let alone extremely grave
- Today, Doughty would be guilty
What are the 5 specific incidents which may serve as evidence/precedent for qualifying triggers
- Provocation by things done or said
- Provocation and Third Parties
- Self-induced loss of control
- Mercy Killing
- “Sexual Infidelity”
What are 2 cases for provocation by things done or said
case/evidence for qualifying trigger
R v Doughty [1986]
R v Clarke [1991]
What are 3 cases for provocation and third parties
case/evidence for qualufting triggers
R v Pearson [1992]
R v Davies [1975]
R v Myles [2023]
What are the 2 cases for self-induced loss of control
case/evidence for qualifying triggers
Edwards v R [1973]
R v Johnson [1898]
What is 1 case for Mercy Killing
case/evidence for qualifying triggers
R v Cocker [1989]
What is 1 case for “sexual infidelity”
case/evidence for qualifying triggers
R v Clinton [2012] EWCA Crim 2
What is the third limb for LOC? And what are the 2 relevant sections.
Would a reasonable man be provoked to lose his self-control and od as he did?
Section 54(1)(c)
- to take into account, sex, age, normal degree of tolerance, and circumstances of D
Section 54(3)
What are the 4 cases that can explain the third limb (Section 54(1)(c))
reasonable man test
- Bedder v DPP [1954]
- DPP v Camplin (1978)
- R v Morhall [1995]
- R v Smith (Morgan) [2000]
note - these tests are have evovled until Smith (Morgan)
Bedder v DPP [1954]
No characteristics of the defendant will be given
But if you can feel that what the D did was reasonable then the test would be satisfied
note
- this case said that no characteristics were taken into account
DPP v Camplin (1978)
IMPORTANT
Lord Diplock
- “The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to his self-control but also would react to the provocation as the accused did…”
Note
- Any characteristics that are external to the D (not what D actually is)
this is the case that started created all the criteria for section 54(1)(a)
R v Morhall [1995]
Issue
- This case led the courts to consider whether it was possible to take mental characteristics into account, in deciding whether the lay person would see the same
Facts
- Victim was depressed, so she had a different mental characteristic compared to the jury
Takeaway
- D was provoking her not only externally, but internally (mental)
R v Smith (Morgan) [2000]
IMPORTANT
Held
- Trial judge failed to mention the D’s mental characteristics (severe depressive illness) to the jury
- COA quashed the murder conviction, substituted with manslaughter conviction
Lord Hoffman
- “(Juries) may think that there was some characteristics of the accused, whether temporary or permanent, which affected the degree of control which society would reasonably have expected of him and which it would be unjust not to take into account.”
