Criminal Oral Exam Prep- Part B Flashcards
What are the three elements of the loss of control defence outlined in section 54(1)?
Paraphrasing section 54(1) of the CJA 2009, the three elements that must be established for this defence to murder to be successfully plead are;
a) The defendant must lose control;
b) The loss of control must have a qualifying trigger; and
c) A person of the defendant’s sex and age, with a normal degree of tolerance and self- restraint and in the same circumstances, might have reacted in the same or similar way to the defendant.
What are the other provisions s. 54(2), (4) and (6) and how do they apply to the loss of control defence?
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Define loss of control?
Section 54(2)- The loss of control does NOT need to be sudden, R v Ahluwahlia
Section 54(4)- The loss of control defence will NOT apply where the defendant acted out of revenge.
Section 54(6)- The loss of control defence can ONLY be presented to a jury, if in the opinion of the trial judge, a properly directed jury might decide the defence applies
Loss of control means the loss of the ability to act in accordance with considered judgement or a loss of normal powers of reasoning- R v Jewell
How do the qualifying triggers in s. 55(3) and (4) apply to the loss of control defence?
Section 55(3)- The Fear Trigger
* The fear trigger will apply where the loss of control is attributable defendant’s fear of serious violence from the victim AGAINST the defendant or another identified person.
- The fear is subjectively assessed so that the jury must be satisfied that the defendant was genuinely afraid of such violence even if the fear is not reasonable.
Section 55(4)- The Anger Trigger
* The anger trigger under s 55(4) applies where the defendant’s loss of control was attributable to things said and/or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged.
* Whilst circumstances of an extremely grave character is NOT defined, the Law Commission gave an example parent coming home to find their child being sexually abused as an example of when s 55(4) might apply.
How does s. 55(6)(C) regarding sexual infidelity apply to the defence of loss of control?
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What is the other provision section 55(6)(a) and (b), and how does this apply to the loss of control?
Section 55 (6)(C)- Sexual Infidelity
Under section 55(6)(c)- ‘The fact that a thing done or said constituted sexual infidelity is to be discarded’.
*The statute explicity excludes sexual infidelity from being used as a qualifying trigger
- Sexual infidelity on its own CANNOT constitute grounds for the defendant to have a justifiable sense of being seriously wronged to be able to rely on the loss of control defence to reduce a murder charge to manslaughter.
- However, if the qualifying trigger is non-sexual provocation, sexual infidelity can be also be taken into account in determining the objective standard, i.e., whether things done or said amounted to circumstances of an extremely grave character and gave the defendant a justifiable sense of being seriously wronged,- R v Clinton
Section 55(6)(a) and (b)- Inciting Violence
* The loss of self-control will NOT be a defence if the defendant has incited the things said or done as an excuse to use violence in response. The defendant’s fear of serious violence, or their sense of being seriously wronged (anger and fear triggers) MUST be disregarded- R v Dawes
What is the old defence of provocation under the Homicide Act 1957
Under the old defence of provocation, the jury could take into acount any act or words that provoked the defendant and caused them to lose self control.
The jury was then left to decide whether provocation was enough to make a reasonable man do as he did, and as mentioned the jury could take into account eveything said or done
Q.1 – How does the judge’s role differ in relation to the ‘old’ law of provocation and the current law of loss of control?
Under the old law of provocation, the judge was obliged to leave the issue to the jury, even where the provoking conduct or words were trivial such as in the case of R v Doughty (a baby’s cry was considered a provocation).
However now under section 54(6) of the coroners and justice act 2009, the loss of control defence can ONLY be presented to a jury, if the judge believes a properly conducted jury might decide the defence applies. There must be evidence of all 3 aspects of the loss of control and the judge decides if the circumstances were grave enough to cause a justifiable sense of being wronged.
Q.2 – How is the loss of control dealt with under the Coroners and Justice Act 2009?
The loss of control is subjectively assessed, so the jury must be satisfied that the defendant did actually lose control, it is not enough that a under the circumstances a reasonable person would have lost control, but the defendant did not.
Whilst the defendant does need to lose control, there is no longer a requirement that loss of control be sudden. Under section 54(4), if a person acts in a considered desire for revenge, this will not qualify.
Q.3 – The partial defence of loss of control introduces qualifying triggers. What are these?
These qualifying triggers are set out under section 55 of the Coroners and Justice Act- CJA 2009
The fear trigger is set out in section 55(3)
* The fear trigger will apply where the loss of control comes from the defendant’s fear of serious violence from the victim AGAINST the defendant or another identified person. The fear is subjectively assessed so that the jury must be satisfied that the defendant was genuinely afraid of such violence even if the fear is not reasonable.
The anger trigger is set out in section 55(4)
* The anger trigger will apply where the defendant’s loss of control was attributable to things said and/or done that amounted to circumstances of an extremely grave character and caused the defendant to have a justifiable sense of having been seriously wronged.
* Whilst circumstances of an extremely grave character is NOT defined, the Law Commission gave an example parent coming home to find their child being sexually abused as an example of when s 55(4) might apply.
In contrast under the old law of provocation, there was no restriction as to the words of conduct that could create a provocation, as long as the defendant lost control.
Q.4 – Why was sexual infidelity dealt with separately in the Act?
Sexual infidelity was dealt with in the act because it was the government’s intention to stop this defence being used in cases where the defendant kills their spouse/partner after catching them in the act of adultery.
Under section 55(6)(c)- ‘The fact that a thing done or said constituted sexual infidelity is to be discarded’.
Q.5 – Why did this provision lead to controversy? What were the views of academics on the exclusion of sexual infidelity?
Under section 55(6)(c)- ‘The fact that a thing done or said constituted sexual infidelity is to be discarded’. This provision caused a lot of controversy because of its ambiguous nature, with sexual infidelity itself not being defined by the act, leasing to problems of statutory interpretation.
If the term sexual infidelity is read narrowly, it comprises only of incidents and conduct related to sexual infidelity. Lord judge accepted that a betrayal by one partner by telling another about an illicit relationship could meet the circumstances whereby it was to be discarded.
However, if sexual infidelity is not directly linked to the words used ‘e.g. if a victim tells the defendant that he/she loves someone else, there was a debate as to whether these words constituted sexual infidelity or were instead a report of infidelity, but not words or conduct that amount to the act. Again reading this section narrowly it can be agued that these words don’t constitute sexual infidelity so aren’t to be disregarded.
Again if we interpret the statute narrowly, section 55(6)(c) only forbids regard being given to words or conduct that constitute sexual infidelity as a qualifying trigger, but not to non-sexual qualifying triggers that result in the loss of control leading to the killing, where sexual infidelity is also part of the circumstances. In other words where there is a non-sexual qualifying trigger, sexual infidelity and its effects can be considered when assessing the gravity of the circumstances , provided there was something outside the sexual infidelity which amounts to circumstances of a grave nature that, allowed the defendant to have a justifiable sense of being seriously wronged causing them to lose control- e.g. R v Clinton ‘in addition to sexual infidelity, defendant was taunted about his lack of courage in not committing suicide and that the D’s partner did not want the children’.
What are the views of academics in relation to the provision regarding sexual infidelity?
Wilson believes that the effects of sexual infidelity that cause a loss of self-control due to jealousy, possessiveness or family honour is NOT a qualifying trigger, but if sexual infidelity is a backdrop to another trigger that does not come from jealousy, possessiveness or family honour then is should be considered.
In contrast Simester and Sullivan are of the viewpoint that only words and acts count as sexual infidelity, but the effects of sexual infidelity such as envy, jealousness or possession can amount to a qualifying trigger.
However maybe the viewpoint of Wilson is stronger, because if acts and words constituting to sexual infidelity are excluded but not their effects e.g. jealousy, then wouldn’t this render s 55 (6)(c) useless. In essence sexual infidelity is being let in through the back door to qualify as trigger via the effects it may have on a person that leads to loss of control rather than the act itself, which seems to contradict parliaments will
How did judges approach the issue- concerning the exclusion of sexual infidelity?
In R v Clinton, at first the trial judge held that the defence of loss of control was not available to the defendant, because the words relating to the sexual infidelity ‘D’s wife had had relations with 5 men describing the details in graphic nature’, should be disregarded as a qualifying trigger, and the remaining factors were not of an extremely grave nature for a defendant to feel a justifiable sense of being seriously wronged. He was convicted or murder, but appealed and the appeal was allowed.
The appeal was allowed because the defence of loss of control should have been put the jury. Lord Judge CJ, interpreted that section to mean that whilst sexual infidelity (acts or words that constitute it), must be disregarded if sexual infidelity itself is the qualifying trigger, if non-sexual factors count as the qualifying trigger, in this case ‘because the D’s wife taunted him about his lack of courage to commit suicide and that she didn’t want the kids’. Then sexual infidelity can be taken into account when assessing whether the things said or done amount to circumstances of an extremely grave character and give the defendant a justifiable sense of feeling wronged. It can add context to the gravity of the trigger to the defendant.
Q.7 – How did the ‘old’ law discriminate against the abused woman?
Under the old defence of provocation, the loss of control had to be sudden and temporary. This provision created a gender bias favouring men, because on average, men who killed were more likely to kill in the heat of the moment, as they are more likely to react violently/on impulse.
Women on the other hand are less likely to kill suddenly/on impulse after being provoked due to size imbalances and strength differences between men and women. There was often a greater time lapse between the provocation and the killing. As a result, oftentimes women could not use the defence or provocation and had to rely on the defence of diminished responsibility using a medico-legal category of battered woman syndrome, which stigmatised them and made them out to be mentally deficient/unstable.
Under the new loss of control defence, the requirement for ‘sudden loss of control’ has been dropped which is more accommodating towards women who often use lethal force following loss of control stemming from the cumulative impact of earlier events.
The fear trigger has been added allowing women to rely on loss of control if the woman’s killing does not fall under the scope of self-defence, because the killing was disproportionate or not in response to imminent violence, and it a much more feasible alternative, R v Ahluwalia.
Q.8 – Under the old law, there was concern that the standard had become too objective, so that it blurred the lines with diminished responsibility. Do you agree with this?
The old law of provocation was criticised because the objective reasonable person test had become too subjectivised. There was an overlap between defence of provocation and diminished responsibility because the defendant could take a mental disability (which affected their ability to control themselves) into account when assessing their reaction to the provocation in relation to the reasonable man, lowering said objective standard.
For example, in the case of R v Smith (Morgan), where an alcoholic suffering from a depressive illness stabbed his drinking partner and appealed his murder charge on the basis, that his depressive illness should be taken into account when assessing his reaction to the provocation. The House of Lords affirmed this position believing that mental characteristics of the defendant could be considered when assessing the gravity of the provocation AND the reaction of the defendant to the provocation in in relation to the reasonable man. A defendant who failed to establish diminished responsibility might be able to succeed on the defence of provocation on the same evidence.
However, in Holley, the position changed becoming more objective. An ordinary person without the unique characteristics of the defendant should be used to determine if someone provoked in the circumstances would lose self-control (objective standard), reducing the overlap between diminished responsibility and defence of provocation, so the latter could be less liberally used.
Also in statute, Section 54(3) of the CJA 2009, outlines that in the circumstances all factors can be considered except those that bear of the defendant’s general capacity for self-control and restraint. Previously a person’s response to provocation was judged in relation to a reasonable man sharing their same characteristics which lowered the standard regarding self-control/restraint. Now that characteristics that reduce the D’s capacity for self-control have been removed, the threshold for loss of control is much higher, being judged according to a D’s of the same age and sex with normal degree of tolerance and self-restraint, and such a person is a lot less likely to lose control.
Q.9 – What is the relevance of ‘age and sex’ in the partial defence of loss of control?
The relevance of age and sex is that the test of the reasonable man shouldn’t be uniformly applied but should take into account what is reasonable for a person depending on their age and sex. This comes from the case of DPP v Camplin, where the House of Lords affirmed the court of appeals decision that the original trial judge was wrong by not allowing the jury to consider the defendant’s age when assessing the provocation.
