Loss of Control Flashcards
Q: What is the defence of loss of control?
S54(1) Coroners and Justice Act 2009
Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of murder if-
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(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 in a similar way to D.
Q: Does the loss of control have to be sudden?
S54(2) CJA 2009
It does not matter whether or not the LOC was sudden.
Q: Is the defence of loss of control available if D acted in revenge?
S54(4) CJA 2009
Does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
Q: Who does the burden of proof lie with?
It is for the defence to raise sufficient evidence of loss of control that a properly directed jury could reasonably conclude that the defence might apply.
Having raised sufficient evidence, it is for the prosecution to prove beyond reasonable doubt that the defence is not satisfied. If they cannot prove that then the defence will not succeed.
Q: Summary- what 3 things are required for this special defence?
- Evidence that D’s conduct resulted from a loss of self-control
- That it was a loss of self-control that had a qualifying trigger
- That a reasonable person of D’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstances of D, might have reacted in the same or a similar way
Q: Can the fact that D has voluntarily consumed alcohol be included when considering D’s circumstances?
No!
Asmelash- COA confirmed that in considering the question under s. 54(1)(c) of whether ‘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 similar way to D’, the fact that the accused had voluntarily consumed alcohol was not to be included in D’s circumstances.
Q: What is a qualifying trigger?
S55 CJA 2009
D’s loss of control must be attributable to:
- D’s fear of serious violence from V against D or another identified person
- To a thing or things done or said (or both) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged.
Q: What type of test is D’s fear of serious violence?
Subjective test- D will need to show that he lost self-control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable
Q: What type of test is D’s sense of being seriously wronged?
Objective test for the jury to determine- this sets a high threshold for the circumstances in which a partial defence is available where a person loses self-control in response to words or actions.
Sexual infidelity or D’s instigation of the violence will not meet the threshold (s55(6)).
Q: If one D party to a killing successfully raises a defence of loss of control, does this entitle the other D’s to the defence?
No- each D is judged separately and must raise their own defence.
