Defences - Voluntary Manslaughter - Loss of Control

Question 1

s54(7) CJA 2010

Effect of Defence

Loss of Control

Answer 1

If defence operates, defendant guilty of voluntary manslaughter, not murder.

Question 2

s54(6) CJA 2010

Proof

Loss of Control

Answer 2

If there is sufficient evidence of loss of control, the judge should leave it to the jury

Question 3

s54(5) CJA 2010

Proof

Loss of Control

Answer 3

Burden of Proof is on the prosecution

Must be disproved beyond reasonable doubt

Question 4

Elements of the Defence of Loss of Control

Answer 4

1. Did the defendant kill another person as a result of losing control? S 54(1)(a)
2. Did the loss of control have a qualifying trigger? S 54(1)(b)
3. Might “another person” have acted in the same or similar way? S 54(1)(c)

• R v Clinton - All three elements need to be analysed sequentially and in detail
• Prosecution need disprove only one element

Question 5

R v Richens [1993]

Loss of Control

Element 1

Answer 5

Loss of control need not be complete, but defendant must be unable to restrain himself; a mere loss of temper will not count

Question 6

s 54(2) CJA 2009

Loss of Control

Element 1

Answer 6

“it does not matter that the loss of control was not sudden”

Question 7

R v Ahluwalia [1992]

Loss of Control

Element 1

Answer 7

• CoA held possibility of the defendant actually having temporarily and suddenly lost control was not negated simply by the lapse of time between the provocation and the defendant’s actions.
• However, evidence of such a delay and deliberate planning were factors prosecution were able to rely on to demonstrate that the defendant had not lost control suddenly. Defence can still work, but the longer the delay, the more likely it will be that the prosecution will negative the defence of loss of control.

Question 8

s 54(4) CJA 2009

Loss of Control

Element 1

Answer 8

No defence if defendant “acted in a considered desire for revenge”

Question 9

2 qualifying triggers for loss of control

S55 CJA 2009

Element 2

Answer 9

• Fear of serious violence: s 55(3)
• S 55(4) - 3 requirements

1. Things said or done (can’t be something like seriously cold or hungry)
   
   • R v Acott [1996] – person losing control when driving in slow moving traffic caused by snow would not be able to rely on the defence (Lord Steyn)
2. that “constitute circumstances of an extremely grave character: s 55(4)(a); and
3. Which “caused defendant to have a justifiable sense of being seriously wronged”: s 55(4)(b)

R v Clinton - Objective test

Question 10

Limitations on Use of Defence

Loss of Control

Element 2

Answer 10

S54(4) CJA 2009 – this defence cannot be used if it stems from an act of revenge.

• Fear of violence caused by something defendant incited to be done: s 55(6)(a)
• A sense of being seriously wronged caused by something defendant incited to be done: s 55(6)(b)
• Where infidelity is the sole reason for acting, the defence fails: s 55(6)(c)

Question 11

The reaction of “another person”

Loss of Control

Element 3

Answer 11

• S 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 a similar way.’
• S54(3) -“the circumstances of D” is a reference to all of D’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”.

Question 12

R v Rejmanski; Gassman [2017]

Loss of Control

Element 3

Answer 12

Post traumatic stress disorder and a personality disorder would be excluded by s54(3)

Question 13

R v Rejmanski [2017]

Loss of Control

Element 3

Answer 13

Hallet LJ: If a mental disorder has a relevance to the defendant’s conduct other than a bearing on his general capacity for tolerance or self-restraint, it is not excluded by subsection 3 and the jury will be entitled to take it into account as one of the defendant’s circumstances under s54(1)(c)….. but [it] would not be relevant to the question of the degree of tolerance and self-restraint which would be exercised by the hypothetical person referred to in s54(1)(c).

Question 14

R v Wilcocks [2016]

Loss of Control

Element 3

Answer 14

• Victim taunted defendant about failed suicide attempts; had a personality disorder – judge said to jury that if they thought the personality disorder would make him angry at the slightest provocation, it would not assist him with loss of control, but if they thought it would cause him to attempt suicide you would take it into account as circumstance, but the reasonable man must have normal powers of tolerance of self-restraint.

Question 15

R v Morhall

Loss of Control

Element 3

Answer 15

• Morhall addicted to glue; goaded by the victim as hopeless character, couldn’t get a job, unemployable, addicted to glue – glue sniffer was relevant to qualifying trigger, but fact he was high on glue at the time would be excluded as reasonable man would not be high on glue.

Question 16

R v Asmelash [2013]

Loss of Control

Intoxication

Answer 16

CoA firmly rejected the argument that voluntary intoxication could be taken into account since the effect of intoxication is wider than a capacity for tolerance and self-restraint, e.g. may induce a restraint.

• A defendant is not precluded from using the defence just because he is drunk
• His intoxication will be ignored in accordance with CJA 2009, s54(3) if it has no connection to the things said or done which make up the qualifying trigger, and
• If there is a connection between the things said or done which make up the qualifying trigger e.g. when the defendant is taunted about his intoxication, then the jury can take that intoxication into account in assessing the gravity of the qualifying trigger.