Loss of Control

Question 1

what is the definition of loss of control?

Answer 1

(S.54 C&JA 2009)

1. D’s acts or omissions resulted from D’s loss of self-control
2. D lost control due to a qualifying trigger
3. A person of D’s age and sex, 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

Question 2

what is the first step of loss of control?

Answer 2

. D’s acts or omissions resulted from D’s loss of self-control

1. D must lose control
2. The killing must result from D’s loss of control
   - Is there a time delay between losing self-control and killing?
   
   • (S.54(2))-loss of control does not have to be sudden- can be a time delay between qualifying trigger and reaction
   • the longer the delay, the less likely jury will believe that killing resulted from loss of self-control
     - (Baillie)-where there is a gap between the trigger and the killing, D must prove he remained out of control throughout the relevant period

Question 3

what is the second step of loss of control?

Answer 3

D lost control due to qualifying trigger

• (S.55):
  
  • Fear of serious violence
  • Things done and/or said which constituted circumstances of a grave character and also caused D to have a justifiable sense of being seriously wronged

Question 4

what is the fear trigger?

Answer 4

fear of serious violence from victim

• must be genuine fear
• subjective test-fear does not need to be reasonable and it does not need to be shown that there was any actual violence
• fear can be of violence to D or another identifiable person

Question 5

what is the anger trigger?

Answer 5

Things done and/or said which constituted circumstances of a grave character and also caused D to have a justifiable sense of being seriously wronged

1. what were things that were done and/or said?
2. did these constitute circumstances of a grave character?
3. did d have a justifiable sense of being seriously wronged?

Question 6

what is the third step of loss of control?

Answer 6

are there any restrictions

• if restrictions apply-can’t get the partial defence
• (S.55)-restrictions:
  
  • incitement-if d deliberately incited the violence from v
  • infidelity-(Clinton)-where sexual infidelity is not the only trigger, there is not a total exclusion and the defence can be put to jury
  • considered desire for revenge-planned to some extent-(Ibrams and Gregory)

Question 7

what is the fourth step of loss of control?

Answer 7

Person of D’s age and sex, 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

-objective test
A. person of D’s age and sex
-(Camplin)-age and sex of d may be relevant
B. with a normal degree of tolerance and self-restraint
-(Mohammed)-bad tempered prone to violence this must be disregarded
-(Holley)-alcoholism and depression must be disregarded
C. in the circumstances of d
-capacity for tolerance and self restraint