loss of control Flashcards
1
Q
what is loss of control?
A
- voluntary manslaughter,
- crime similar to murder, but special circumstances exist which permit less serious verdicts of manslaughter to be brought in,
- the verdict of voluntary manslaughter will only arise from a charge of murder to which a special and partial defence has been pleaded,
2
Q
provocation
A
- provocation existed at common law before the law in this area was modified by s.3 homicide act 1957 (now ceases to have effect),
- this area has been replaced by ss54 and 55 of the coroners and justice act 2009,
3
Q
is it a full defence?
A
- no, partial defence to murder, reduces charge from murder to manslaughter,
- law states ‘where a d kills or is party to the killing of another, d is not convicted of murder if:’
a) act or omission in killing resulted from a loss of self-control,
b) loss of control had a qualifying trigger,
c) a person of d’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of d, would have reacted in the same/similar way,
4
Q
procedure
A
- judge must decide if there is enough evidence and the jury must assume the defence is satisfied unless the crown proves beyond all reasonable doubt otherwise,
- revenge does not apply (ss54.4) and neither does sexual infidelity (s55.6b),
5
Q
S.54(1)(A) ‘Loss of self control’
A
- central issue to this defence and was central to provocation,
- however, where the old law stated the loss of control must be ‘sudden’ the new law does not,
- the new defence should therefore apply in some situations where the old did not,
6
Q
Ibrams and Gregory
A
- Ibrams’ girlfriends ex boyfriend had been visiting their flat and terrorising them,
- 7th Oct, Ibrams called police who did nothing,
- 10th, Ibrams and friends plan to attack,
- 12th, carried out and killed him,
- convicted of murder, 5 day gap is too long and showed revenge,
7
Q
Baillie
A
- v had been supplying drugs to defendants son and made threats,
- d decided to confront v,
- d got a shotgun and razor from attic, got in car and went to vs home, (Was delayed by minor incident),
- d shot and killed v,
- d originally tried with murder and a plea of provocation but was rejected,
- on appeal CoA stated even though there was strong evidence of premeditation rather than loss of self control it should still be put to the jury,
8
Q
S.54(1)(A)
A
- ‘loss of self control’
- there is no longer a requirement that the loss of control has to be sudden but..
- the length of time may indicate a desire for revenge and therefore rule out the defence..
- it is arguable in Baillie he may be able to use the new defence as his actions did not show a ‘considered’ desire for revenge,
9
Q
R v Jewell
A
- D shot V at point blank range and fled the scene,
- when arrested he had weapons and a survival kit in his car,
- at trial he told jury ‘i did it as i lost control and couldn’t think straight’,
- judge considered not enough evidence for loss of control and CoA agreed,
10
Q
S.53 - qualifying triggers
A
- s.53 - d’s fear of serious violence from v against d or another identified person,
- s.55(5) - things done or said which constituted circumstances of any extremely grave character, and caused d to have a justifiable sense of being seriously wronged,
11
Q
trigger 1
A
- fear of serious violence s.55(3),
- test for this is subjective,
- the d will have to show that he lost his self control because of a genuine fear of violence,
- it will not matter if that fear was unreasonable,
- fear of violence must be against the d or themselves or another identified person e.g. a family member - cannot be fear against people in general,
12
Q
R v Ward
A
- d , his brother and v became friends and spent much of a day and night drinking and taking drugs,
- following morning v left and tried to re-enter the house,
- after some pushing and shoving v head-butted his brother,
- d came to his brother and attacked v with a pickaxe handle - v died from his injuries,
- d was successful with LoC as he feared serious violence towards his brother,
13
Q
trigger 2
A
- ‘a thing or things done or said’
- circumstances of an extremely grave character,
- justifiable sense of being seriously wronged (an objective test -did D have a right to feel this way),
- the effect of these new conditions means it would be almost impossible for the defence to apply in some cases where provocation was allowed,
14
Q
R v Zebedee
A
- d killed his 94 year old father who suffered from dementia after he repeatedly soiled himself,
- he was unsuccessful with LoC as there was nothing of extremely grave character that could cause him as justifiable sense of being wronged,
15
Q
R v Hatter
A
- d had relationship with V, it phased out, started seeing someone else although she never told D it was over,
- he went to her house at midnight with a knife and climbed through window,
- claimed the knife was to lift carpets and he accidentally stabbed her in the chest and arm, killing her, stabbed himself and survived,
- judge held no evidence of anything that was grave in nature,
16
Q
R v Clinton
A
- d and his wife having a separation, she had an affair,
- she agreed to meet him and tell the children,
- when she arrived he was drunk and killed her with repeated blows to the head and strangled her with a belt,
- he took photos of her body and texted her lover them,
- CoA said where sexual infidelity is put forward as the only reason for loss on control, then the prohibition in section55(6) takes affect,
- however sexual infidelity when combined with another issue can be considered to give context to the trigger of LoC,
1. she told him she had sexual relations with five men and told him in graphic detail the acts they performed,
2. she laughed and taunted him about a website he had been looking at,
3. she told him she no longer wanted the children, - judges should have let the issue of loss of control go to the jury - conviction quashed and retrial ordered,
17
Q
objective test
A
- s.54(1),
- the court will ask whether a person of d’s own sex and age, with a normal degree of tolerance and self-restraint and in d’s circumstances, may have recreated in the same or similar way to d,
- the test closely follows the decision of the privy council for Jersey v Holley and seems to put into statutory from the original decision made,
18
Q
R v Holley
A
- d killed his girlfriend with an axe,
- he was an alcoholic (as was she) she told him she had sex with another man,
- he picked up the axe, not intending to kill,
- when v says “you haven’t got the guys”,
- he hit her with the axe 7 or 8 times,
- he pleaded provocation,
19
Q
objective test
A
- personal characteristics of d should not be considered,
- its an objective test and only the d’s age and sex should be considered,
- things such as years of abuse, serious threats, violence, taunts about family circumstances, religion can be relevant,
- things such as having a short temper will not be relevant,
20
Q
Mohammed
A
- the appellant, muslim, stabbed his daughter 19 times after finding her in her room with a man,
- at trial he raised defence of provocation based on his religious beliefs,
- d was suffering from depression,
- prosecution brought considerable evidence from the deceased’s siblings to show he was a man of violent disposition to demonstrate d lost his temper rather than lost self-control,
- jury rejected provocation and convicted murder,
21
Q
‘loss of control’ flow chart - paragraph 1
A
- s54(2) - did the d lose self-control?
- does not need to be sudden,
- length of time may indicate desire for revenge and exclude the defence, Ibrams and Gregory, Baillie and Jewell,
22
Q
‘loss of control’ flow chart - paragraph 2
A
- s55 - the loss of control must be as a result of a qualifying trigger,
- s55(3) - d’s fear of serious violence from v against f or another identified person, the fear must be genuine. it is a subjective test. irrelevant that it might be an unreasonable fear. R v Ward,
- s55(4) - things done and/or said which not only constituted circumstances of an extremely grave character but also caused d to have a justifiable sense of being seriously wronged. this is an objective test. did the d and would the reasonable person have felt reasonably wronged? R v Zebedee,
- s55(5) - both qualifying triggers may be present,
23
Q
‘loss of control’ flow chart - paragraph 3
A
- s55(6) - 3 restrictions on the availability of the qualifying triggers:
- s55(6)(a) - d’s fear of serious violence is to be disregarded if d incited something to be done or said to provide him with the excuse to use violence,
- as above if d incited a thing to be done or said that caused in him a sense of being seriously wronged,
- anything said or done in connection with sexual infidelity is to be disregarded (Dawes). BUT, Clinton confirms that sexual infidelity can be considered a factor, but only when combined with another qualifying trigger,
24
Q
‘loss of control’ flow chart - paragraph 4
A
- s54(1) - the court will ask whether a person of d’s own sex and age, with a normal degree of tolerance and self-restraint and in d’s circumstances, might have reacted in the same or in a similar way to D (Holley),
- it is an objective test,
- certain circumstances are relevant : years of abuse, threatened with serious violence, taunted about family circumstances, religion etc,
- certain circumstances are not relevant, e.g. a short temper (Mohammed),
25
conclusion
- if successful, did will be not guilty of murder, but of voluntary manslaughter,
- jury's decision,
