Criminal Oral- Loss of Control Defence

Question 1

What are the three elements of the loss of control defence outlined in section 54(1)?

Answer 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.

Question 2

What are the other provisions s. 54(2), (4) and (6) and how do they apply to the loss of control defence?

+

Define loss of control?

Answer 2

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.

Section 54(3)- All of the defendant’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint……can be taken into account.

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

Question 3

How do the qualifying triggers in s. 55(3) and (4) apply to the loss of control defence?

Answer 3

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.

Question 4

How does s. 55(6)(C) regarding sexual infidelity apply to the defence of loss of control?

+

What is the other provision section 55(6)(a) and (b), and how does this apply to the loss of control?

Answer 4

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

Question 5

What is the old defence of provocation under the Homicide Act 1957

Answer 5

The old defence of provocation was a two part test;

1. Was the defendant provoked by things said or done (or both) to suddenly and temporarily lose their self control? (subjective)
2. Would the provocation have made a reasonable person lose their self control and do as the defendant did? (objective test)

The jury was then left to decide whether provocation was enough to make a reasonable man do as he did, and the jury could take into account everything said or done.