loss of control Flashcards
What is loss of control?
this is a partial defence to a charge of murder
What did the loss of control replace?
the former defence of provocation
Where is the law on the loss of control set out?
s54 of the Coroners and Justice Act 2009
What is the definition of loss of control?
Where a person kills or is a party to the killing of another, D is not to be convicted of murder if
- D’s acts/omission resulted from loss of control
- the loss of self control had a qualifying trigger
- a person’s of D’s age and sex with a normal degree of tolerance and self-restraint in the same circumstances might have reacted the same as D
Under s.54(2) of the Coroners and Justice Act 2009 the loss of self control does not have to be what?
sudden
While s.54(2) of the Coroners and Justice Act 2009 states that the loss of self control does not have to be sudden, how is this different to the old defence of provocation?
As loss of control had to be sudden
What case is an example of where D was unable to use the defence of provocation as a loss of control had to be sudden?
Ahluwalia 1992
What happened in the case of Ahluwalia?
D had been physically abused over many years by her husband. D set V on fire after he threatened violence the night before. COA did not allow appeal as her reaction had to be ‘sudden’ and not deliberate. COA allowed defence of DR
D had been physically abused over many years by her husband. D set V on fire after he threatened violence the night before. COA did not allow appeal as her reaction had to be ‘sudden’ and not deliberate. COA allowed defence of DR
What case is this?
Ahuluwalia
As there does now not have to be a sudden loss of self control for the defence, it is possible that D in which case may have been given the defence of loss of control?
Ahluwalia
What section of the Coroners and Justice Act sets out the qualifying triggers which are permitted?
s.55
What are the 2 qualifying triggers?
1) D’s fear of serious violence from V
2) things said or done which
- are of an extremely grave nature
- cause D to have a justifiable sense of being wronged
What case shows that the old law of provocation did not allow a defence where D lost control through fear of violence?
Martin Anthony 2002
What does not constitute as fear of violence?
to fear another person who is not identified. It cannot be a general fear of violence
When can D not rely on the qualifying fear of violence?
when D has incited the violence
What case emphasised the fact that if D has incited violence then D cannot rely on a fear of violence qualifying trigger?
Dawes 2013
D found wife having an affair. D stabbed V. Defence of loss of control did not go to jury. COA upheld conviction as D can not rely on sexual infidelity as a qualifying trigger nor could he rely on fear of violence when he incited violence. COA also pointed out that where D has a normal capacity of self restraint and tolerance then unless the circumstances were extremely grave, any irritation will not come within loss of control.
What case is this?
Dawes
What happened in the case of Dawes?
D found wife having an affair. D stabbed V. Defence of loss of control did not go to jury. COA upheld conviction as D can not rely on sexual infidelity as a qualifying trigger nor could he rely on fear of violence when he incited violence. COA also pointed out that where D has a normal capacity of self restraint and tolerance then unless the circumstances were extremely grave, any irritation will not come within loss of control.
Under what section are the two points that have to be shown if D is relying on thins said or done which are:
- extremely grave character
- caused D to have a justifiable sense of being wronged
s55(4)
What are the two points under things said or done?
- that they were of an -extremely grave character
- that they caused D to have a justifiable sense of being seriously wronged
How is the defence of loss of control narrower than the old defence of provocation?
as the tests under ‘things said or done’ were not in the old law of provocation
Why would many cases where D was able to use the defence of provocation would now not comes within the defence of loss of control?
as the defence of loss of control is narrower than the old defence of provocation such as with the two points of things said or done
how can the change under ‘things said or done’ be seen between provocation and defence of loss of control? (cases)
through the cases of Doughty (1986) and Zebedee (2012) where Zebedee was not able to use the defence of loss of control
What happened in the case of Doughty (1986)
D killed 19 old son as would not stop crying. COA quashed conviction as it should have been left to jury to decide if the baby’s crying was provocation.
D killed 19 old son as would not stop crying. COA quashed conviction as it should have been left to jury to decide if the baby’s crying was provocation.
What case is this?
Doughty 1986
What happened in the case of Zebedee 2012?
D lost control and killed his elderly father after repeatedly soiling himself. Conviction for murder upheld as in order for things done or said to be a qualifying trigger, the circumstances had to be of an extremely grave nature or D must have had a justifiable sense of being seriously wronged. Neither of these conditions were present.
D lost control and killed his elderly father after repeatedly soiling himself. Conviction for murder upheld as in order for things done or said to be a qualifying trigger, the circumstances had to be of an extremely grave nature or D must have had a justifiable sense of being seriously wronged. Neither of these conditions were present.
What case is this?
Zebedee 2012
When was sexual infidelity allowed as a defence?
under the defence of provocation
What have the Government felt about the defence of provocation?
that the defence of sexual infidelity allowed violence over a common act which was not relevant to 21st century society
What case made it clear that sexual infidelity alone cannot amount to a qualifying trigger for the defence of loss of control?
Clinton 2012
What did the COA decide in the case of Clinton 2012?
that sexual infidelity alone cannot amount to a qualifying trigger for the loss of self control but it did not have to be completely disregarded if it was integral to and informed an essential part of the context where there were other factors which could be qualifying triggers.
What happened in the case of Clinton 2012?
D was being medicated for depression when he killed his wife. The day before she taunted D about having an affair, and said he did not have the courage to commit suicide. COA quashed as defence should have gone to jury
D was being medicated for depression when he killed his wife. The day before she taunted D about having an affair, and said he did not have the courage to commit suicide. COA quashed as defence should have gone to jury
What case is this?
Clinton 2012
In what case was it decided that sexual infidelity cannot amount to a qualifying trigger>
Dawes 2013
other than sexual infidelity, when else will the defence of loss of control not be allowed?
if D acted in a “considered desire for change”
Which excluded matter is similar to that of provocation?
the considered desire for revenge
Which old case reflects that the defence of provocation did not allow considered desire for revenge?
Ibrams and Gregory
What happened in the case of Ibrams and Gregory?
after several incidents of threats and harassments, the two Ds made a plan to attack the person who threatened them, killing V 2 days later. No sudden loss of self control under provocation
Which old case reflects D could have the defence of provocation if there was a sudden loss of self control even if there was an element of desire for revenge?
Baillie 1995
What happened in the case of Baillie?
D shot a drug dealer, V after V threatened his son. Trial judge refused to allow the defence of provocation to be put to jury. COA allowed appeal as there was evidence that he suffered from a loss of self control.
D shot a drug dealer, V after V threatened his son. Trial judge refused to allow the defence of provocation to be put to jury. COA allowed appeal as there was evidence that he suffered from a loss of self control.
What case is this?
Baillie
If the case of Baillie was put to jury today, what would be the likely result?
Under the 2009 Act, it is difficult to tell if Baillie would come under the defence of loss of control as there is a clear element of revenge
The 2009 Act required that whichever ‘qualifying trigger’ is relied on, it is necessary for D to show what?
that a persons of Ds age and sex with a normal degree of tolerance and self restraint in the circumstances of D might have reacted in the same or similar way
What case of provocation held that whichever ‘qualifying trigger’ is relied on, it is still necessary fro D to show that “a person of Ds sex and age with a normal degree of tolerance and self restraint in the circumstances of D might have reacted the same or similar way?
Camplin
What happened in the case of Camplin?
D was 15year old boy who was sexually abused by an older man who laughed at him. D hit the man with a pan. Judge directed the jury to ignore the boys age. D convicted of murder, HOL allowed appeal and substituted for manslaughter.
D was 15year old boy who was sexually abused by an older man who laughed at him. D hit the man with a pan. Judge directed the jury to ignore the boys age. D convicted of murder, HOL allowed appeal and substituted for manslaughter.
What case is this?
Camplin
Under the standard of self control, under the 2009 Act what cannot be taken into account when looking at the level of self control expected of him?
The fact that D may be particularly hot-tempered, e.g personal characteristics
What case under provocation demonstrates that personal characteristics are not taken into the assessment of where D has the ability to exercise self control?
Jersey v Holley
Apart from sex and age, what can the jury not consider under the standard of self control which is an objective part of the defence?
Ds personal circumstances which may have made him have less self control
