Defence - Loss of Control Flashcards
Loss of control is a special defence for which offence?
If successful what does the offence become?
Murder.
If successful it becomes voluntary manslaughter instead
What legislation created Loss of Control?
Section 54 and 55 of the Coroners and Justice Act 2009
What did Loss of Control replace and why? - 2 reasons
Loss of Control replaced the defence of ‘provocation’
This is because provocation had many problems,
one of which is that it was seen as biased against abused women as the defence favoured sudden outbursts of anger (typical of a man)
Another reason is that the defence was too wide and almost anything as trivial as a baby crying could be seen as a trigger for LOC.
Name the THREE elements to Loss of Control
state which case introduced the third element
1) D lost self-control
2) They lost control due to a ‘qualifying trigger’
3) A person of the D’s sex and age, with a normal degree of tolerance, in D’s circumstances MIGHT have reacted in the same way
Jersey v Holley
Element 1) what is the definition of loss of self control
Trick Question! There actually is no definition of loss of self control in the act and it is up to the jury to decide.
However we can use case facts to get an idea:
R vs Jewell - The court said a loss of control was an inability to maintain your actions in accordance with considered judgement.
Element 1) What are some situations that will / will not qualify as loss of control
Serious Anger is not enough to be considered LOC - Dawes
can be sudden and temporary - Ahuwalia
Defence will fail if the jury consider D’s actions to be out of revenge, as it would be planned and not a LOC. - R v Ibrams & Gregory [1982]
Sexual infidelity is to be disregarded - R vs Dawes
Breakdown of a relationship cannot be considered - R vs Hatter
Element 2) What must be present for a situation to be seen as a qualifying trigger?
1) The D’s loss of self-control was because of the D’s fear of serious violence from the V (fears violence towards him or someone else
AND / OR
2) a) The D lost self control due to things done or said that constituted extremely grave character
b) caused D to have a justifiable sense of being seriously wronged.
The LOC can also be a result of a cumulative impact of a long series of events
What cannot be considered a qualifying trigger
S55 establishes that things done or said that constitute sexual infidelity are to be disregarded (cheating on partner)
R vs Dawes
However this was not entirely followed in R vs CLINTON where they said that it can be considered alongside other factors to be deemed a qualifying trigger
What KEY case established the third element of Loss of control
Jersey v Holley
In element 3 what can / cant be considered when looking that the D’s circumstances
CAN: sex, age, some cases sexual infidelity (clinton)
CANT: factors which affect D’s capacity for tolerance e.g anger issues and intoxication
What is the maximum sentence given to voluntary manslaughter?
Life sentence
WHAT CASE RULED SEXUAL INFIDELITY CANNOT BE CONSIDERED? And what case opposed this?
R vs Dawes
Opposed: R vs Clinton
What case establishes breakdown of a relationship is not a qualifying trigger?
R vs Hatter
Describe the proportionality test difference in provocstion compared to LOC
The defence of provocation required some degree of proportionality test in that the jury were required to assess the gravity of the provocation in deciding if a reasonable man would have done as the defendant did.
The new defence of loss of control does not have such a balancing exercise. The gravity of the provocation, or trigger event, is assessed at stage two and must meet the specified thresholds of either fear of serious violence (s.55(3), extremely grave or seriously wronged (s.55(4).
Now there is no requirement that this is weighed against the conduct of the defendant.
Also rather than the jury assessing whether the provocation would have made a reasonable man do as the defendant did, the jury are required to consider if a relevant person might have reacted in the same or similar way. The third element of the defence, is thus perhaps more generous to defendants.
