Circumstances of the Defendant & Sufficient Evidence+reform of the law Flashcards
What happened in the case of Gregson?
V laughed at D for being unemployed, D suffered from depression and epilepsy. Evidence proved that D was more sensitive to taunts about his unemployment. D lost control and killed V. D was given the defence of provocation. His personal circumstances could not be considered in relation to the standard of self control but could be in relation tot the gravity of provocation.
V laughed at D for being unemployed, D suffered from depression and epilepsy. Evidence proved that D was more sensitive to taunts about his unemployment. D lost control and killed V. D was given the defence of provocation. His personal circumstances could not be considered in relation to the standard of self control but could be in relation tot the gravity of provocation.
What case is this?
Gregson
What would be the likely result if the case of Gregson happened under the 2009 Act?
it seems likely that unemployment would be a circumstance for the purposes of the defence of loss of control as under the 2009 Act, the depression and epilepsy would be relevant in deciding whether a person of normal self restraint might have reacted in the same or similar way
What happened in the case of Hill?
D has been sexually abused as a child. D lost control and killed V who tried to sexually assault him. D was able to use the defence of provocation.
D has been sexually abused as a child. D lost control and killed V who tried to sexually assault him. D was able to use the defence of provocation.
What case is this?
Hill
in the circumstances of Hill, what would the ‘normal’ person have to be considered as having?
as having a history of sexual abuse in deciding whether they would ahem reacted in the same or similar way. this would apply under loss of control
explain the personal circumstances
under the ‘normal person’ their circumstances are used to see what a normal person would do, but are not looked at subjectively to the defendants own self restraint
What is not considered to be apart of Ds circumstances ?
voluntary intoxication
In what case did the COA refuse to allow D’s voluntary intoxication to be considered?
Asmelash 2013
In the case of Asmelash, what did the COA refuse to be considered?
Ds voluntary intoxication
Why did the COA in Asmelash refuse to allow Ds voluntary intoxication to be considered?
as Parliament would have otherwise had clearly stated in 2009
While voluntary intoxication is not allowed, how may a defendant still be allowed the defence of loss of control?
if a normal person with the normal levels of tolerance and self restraint may still have behaved in the same way as the defendant when confronted by the relevant qualifying triggers
When could someone with drugs or intoxicated be allowed the defence of loss of control?
if they were taunted about their condition, then the drug or alcohol problem would form part of the circumstances for consideration
When would the defence of loss of control fail when the jury consider what a normal person would do?
if they think they the normal person might have lost control but would not have reacted in the same way
What did the jury decide in Van Dongen under provocation?
that the reasonable man would have lost self control but would not have reacted in the same way as D who repeatedly kicked V while V was lying on the pavement. Defence failed.
What happened in the case of Van Dongen?
D who repeatedly kicked V while V was lying on the pavement. Defence failed as it was held that the easonable man would have lost self control but would not have reacted in the same way as D
Under the old law of provocation, the judge was bound to leave the defence to the jury if there was any evidence that the defendant was provoked to lose his self control however improbable the defence may have appeared. The law commission upon considering reform felt that this was what? (negative)
hat it did not ‘serve the interests of justice’ because it could lead to an absurd claim for the defence being allowed.
The Coroners and Justice Act 2009 did follow the recommendation of the Law Commission to give the trial judge the task of deciding what?
if there was sufficient evidence to leave the defence of loss of control to the jury
In the 3 cases Dawes, Bowyer and Hatter 2013, what did the trial judge refuse to leave to the defence of loss of control to ?
the jury
Why did the COA dismiss appeals in Dawes, Bowyer and Hatter in 2013 after the trial judge had refused to leave the defence of loss of control to jury?
as they found that the judge was right to rule that there was no sufficient evidence to leave the defence to the jury
Why wast the reform of the Coroners and Justice Act 2009 made?
because there had been many problems with the law on provocation
What Act had set up some of the tests for provocation?
1957 Homicide Act
The 1957 Homicide Act did not give a complete definition for provocation, why was this a problem?
as the law in previous cases had t be considered as well as the test in the Homicide Act
What was a main problem in provocation?
the wording of the test in the Homicide Act as this had stated that the jury had to decide whether D was provoked to lose self control and if this was enough to make the reasonable many do as D did
Why did the term reasonable man under provocation initially create problems?
as it was held that this meant a reasonable adult which was hard to apply in cases of teenagers such as in Camplin
What was held in the case of Camplin?
D was 15 and it was held that the age and sex of D could be considered
What is now considered in the loss of control offence under the 2009 Act?
age and sex
It was held in Camplin that other characteristics of D could be considered in regard to the gravity of provocation to him. In the defence of loss of control, what has this now been changed to?
“circumstances”
What is positive of the word “circumstances” in the loss of control defence under 2009 Act?
it is wider than characteristics, though the courts interpretation of characteristics has been relatively generous
What case demonstrates that the courts have been generous regarding the interpretation of “Characteristics” under provocation?
Hill, where the court allowed Ds history of sexual abuse to be considered in the case
In the case of Morhall what did the HOL allow to be considered when deciding the gravity of the provocation to him?
the fact that D was addicted to glue sniffing
How is the defence of loss of control wider in some ways to provocation? (2)
the loss of control does not have to be sudden
fear of serious violence is an additional matter which can be considered
How is the defence of loss of control narrower in some ways to provocation? (2)
- sexual infidelity is no longer allowed as a qualifying trigger
- things said or done must be of a grave character
What case would not have allowed D the defence of loss of control as the things said or done had to be of a grave nature?
Doughty where it was held that the continual crying of 19 day old baby could be provocation
Why did the Law Commission propose to remove the loss of self control criteria completely?
as it is recognised that women in abusive relationships may kill from a combination of fear, frustration and a sense of desperation
What was the only concession the Government made when creating the 2009 Act?
they agreed that loss of control need not be sudden
Why is it a problem that sexual infidelity is no longer allowed as a qualifying trigger?
as the defence of provocation was largely created for such situations as if someone unexpectedly finds their partner with someone else, they are very likely to lose control
Why was the fear of serious violence trigger added?
largely as a result from the lack of defence in the cases of Clegg and Martin
What are the 3 main points of the defence?
- D must have lost control
- Must be a qualifying trigger
- a person of the same age and sex would have reacted in the same circumstances
What are the 2 qualifying triggers?
- fear of serious violence
- a thing said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged.
When can the circumstances of D be taken into consideration in deciding whether a normal person might have reacted in the same way?
when they do not have a bearing on a capacity for self control
