loss of control Flashcards

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1
Q

What is voluntary MS

A
  • Where the AR and MR for murder are satisfied, special circumstances may reduce the offence from murder to manslaughter
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2
Q

What is the rationale for partial defences

A
  • The rationale for a partial defence appears to be a strong one, as it goes directly to the issues of capacity and responsbilty.
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3
Q

where was the defence of LOSC developed from

A
  • The common law developed a partial defence of provocation which was subsequently recognised in the Homicde Act s.3.
    Now recognised by the CJA
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4
Q

What was provocation based on

A
  • The rationale of the provocation defence was based on the notion that a killing in ‘hot blood’ may be undeserveing of the label murder. - The history of provocation belongs to a different society with a different set of cultural expectations. With regards to men and their behaviour. Expected that the reaction of a quarrel would be a violent one, as putting in a position where you would need to protect your honour.
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5
Q

What did Hayward describe the defence of provocation as

A

the alternative rationale was a compassion for human infirmity- this provides an excuse rather than a partial justification.

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6
Q

What did Wells critics the defence of provocation as

A
  • Wells argued that that both rationale were problematic as the defence contained an ‘unappealing message condoning anger over self-restraint’
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7
Q

However despite the criticism why was the defence of provocation needed

A
  • The main reason for the existence of these partial defences is the mandatory life sentence for murder and the need to provide the judge with some discretion in sentencing cases where the killer’s blameworthiness is reduced due to some factor personal to her or the surrounding circumstances of the killing.
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8
Q

Where did reform to LOSC come from

A

It follows that the reform proposals that became the CJA 2009 are about restructuring, not abolishing the partial defence, while eliminating some of the difficulties with the old defence of provocation.

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9
Q

What is the first problem with the defence of provocation

A

1) Slight incidents of provocation were enough to enable the defence to be put to the jury, which was a structural failing in s.3 HA.

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10
Q

which case showed that slight incident could trigger provocation

A
  • Doughty, the D suffocated his son due to the continuing crying. The judge was wrong to say that the crying did not fall within the definition of a provocative act under the old defence of provocation, it was a defence for the jury to decide. As the defendant neither feared immediate violence nor had a justified sense of being seriously wronged, it is highly likely that a judge could not allow today’s modern equivalent of provocation: loss of self-control, to be raised as a defence. If it was allowed, the jury would be entitled to find the act unreasonable.
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11
Q

what was the second issue of provocation

A

It was rooted in ‘sudden’ loss of self-control, and not readily acceptable to ‘slow-burn’ cases where e.g. an abused partner of child reacted to cumulative provocation by killing the abuser.

  • set fire to her husband as he slept, after a course of sustained abuse by him. Argument about whether this was something that should be considered legitimately.
  • LC said defence had become ‘lopsided’ should be available to a weaker party who kills through fear as well as a stronger party who gives way through anger.
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12
Q

What was the last issue with provocation?

A

1) The ‘reasonable man’ acquired a dubious set of precedents allowing him to be invested with the very characteristics (eg mental abnormality) that made D ‘unreasonable’.

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13
Q

case showing the reasonable man acquiring a dubious set of precedents

A
  • Smith (Morgan), The appellant, an alcoholic suffering from a depressive illness, stabbed his drinking partner after a row over some stolen tools. The House of Lords preferred the dissenting opinion in Luc Thuet Thuan holding that mental characteristics can be taken into account in assessing both the gravity of the provocation and the reaction of the defendant in relation to a reasonable man. The appeal was therefore dismissed.
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14
Q

What are the components of loss of control

A

Coroners and Justice Act 2009, s.54(1) ‘Where a person (D) kills or is 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.’

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15
Q

What will d be convicted of if the defence is sucessful

A
  • By s.54(7), D who falls within s.54 is to be convicted of manslaughter instead
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16
Q

What burden of proof is required

A
  • Where there is ‘sufficient evidence to raise an issue’ with respect to the elements of thedefence under s.54(1), the jury must assume that the defence is satisfied unless the prosecution prove beyond reasonable doubt that it is not. (s. 54(5)). Hence the evidential burden is on D, the legal burden on the prosecution.
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17
Q

who decides if there is sufficient evidence to raise a defence

A
  • The judge decides whether there is ‘sufficient evidence’ (s.54(6)) and thus has more control than under the HA s.3, where the case had to be left to the jury if there was merely evidence that D was provoked by something said/done. See Clinton
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18
Q

What is the first requirement

A

that D lost self control s.54(1)

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19
Q

Which S indicates any loss need not be sudden

A

s.54(2), thus acclimating for the slow burn situations

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20
Q

What is loss of control considered to mean by smith and Hogan

A

mean a loss of the abilty to act in accordance with considered judgement or a loss of normal powers of reasoning.

21
Q

What was decided in Jewell

A

, D decided a workmate of his had planned to kill him. Over time D armed himself with two guns and put together a survival kit for his getaway. He shot V as he waited for a lift to work. The whole thing was out of character. Trial judge held there was no evidence of loss of self-control the planning proved otherwise. Held that loss of control, means loss of ability to act with considered judgement, or normal powers of reasoning.

22
Q

What happened in the case of Gurnipar

A
  • D 14 year old boy who stabbed a bully who wanted to fight him and tried to punch D. No evidence to show D had lost control, so could not rely on this defence. Narrowly drawn defence.
    ‘If the judge considers that there is no sufficient evidence of loss of self-control there will be no need to consider the other two components. Nor if there is insufficient evidence of the second will there be a need to address the third’.
23
Q

Where are the qualifying triggers found

A

s.55(3)(4) and (5)

24
Q

What is s.55(3)

A

if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person

25
Q

Why was fear of violence recommended by the Law Com 304

A
  • so that D who reacts out of fear or panic is not worse off than an angry D. Anger is no longer a ‘privileged’ emotion.
26
Q

Is there any definition of what constitutes serious violence?

A

No- this a question for the jury to decide- up to the jury to decide, this will create an overlap with self-defence defences, which is a complete defence, which can be available to someone who fears serious violence.

27
Q

Despite this overlap why is self-defence distinguishable

A
  • in self-defence the force must be reasonable/proportionate. Whereas LOSC allows for a reaction which cannot said to be proportionate, it will be excessive even on the facts that D believed them to be.
28
Q

What is s.55(3) intended to help

A
  • The new trigger is intended to assist slow burn/cumulative impact cases, including battered spouses who kill.
29
Q

what is the second trigger

A

If D’s loss of self-control was attributable to a thing or things done or said which (a) constituted circumstances of an extremely grave character and (b) caused D to have a justifiable sense of being seriously wronged

30
Q

could things said or done trigger provocation?

A

It was possible that things said or doen would trigger the old defence of provocation

31
Q

What did Clinton hold in relation to s.54(4)

A

raises the bar both in relation to:
- The objective element of the test: it is not enough, that D finds the things done/said to be gravely offensive or that he felt seriously wronged. It must be reasonable to do so; and
The qualifications ‘extreamly grave’ and ‘seriously wronged’ filter out abusrd trivia that could trigger the provocation defences, including normal irriation

32
Q

What happened in Dawes

A

emphasised that extremely grave and seriously wrong requires judge to filter out cases of normal irritation. Bowyer heard with Dawes, in which D burgled a house belonging to V. V came home and caught D in the act and then made some comments about the D’s girlfriend. D killed him.

33
Q

What happened in the case of means

A

D suffered mental illness and personality disorder. He was living in secure accommodation under a court order. He killed a career when she asked her to turn down his television. He had a number of irritations, but due to legal orders that lead to his confinement. Judge was right to rule out loss of self control as a defence. DR was the only defence available to him based on mental health, but the jury rejected this and he was convicted or murder. Is this too severe and legalistic?

34
Q

What happened in McDonald?

A

D and his wife were in the middle or divorce proceedings when she discovered that he had been growing Cannabis, and used this against him to get him to sign to her terms of the divorce. She treateneded if he did not she would not allow him to see the children and render his mother homeless. The judge found those cumulative circumstances wree not capable of being grave enough to give rise to a justifiable sense of being seriously wronged. The threats were conditional, they could only be implemented in the future through court proceedings.

35
Q

Why might it be argued that 54(4) is too harsh?

A

In light of the defence being a concession to human frailty? Risk that judge may withdraw a defence before a jury can have chance to consider it

36
Q

What is the last qualifying trigger

A

a combination of 3 and 4

37
Q

what is the normal person?

A
  • stipulates that the jury must consider 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 in a similar way to D.’
    Circumstances of D means ‘all of D’s circumstances other than those whose relevance to D’s conduct is that they bear in D;s general capacity for tolerance or self-restrain- s.54(3).
38
Q

What happened in Camplin

A

15 year old boy sexually assaulted by V and taunted him. D hit the victim with a pan killing him. The test to be applied was a reasonable person of the age and sex of the accused

39
Q

why should the law take into account age

A

, bevcuase law should not expect ‘old heads of young shoulders’ extra allowance made for sex but ‘more doubtfully’ Hoffman in AG Jersey v Holley

40
Q

what chvarcetriscs are taken into account

A
  • Characteristics that serve only to explain/excuse D’s inability to exercise normal self-control are excluded, this overturned the common law approach in Smith (Morgan).
41
Q

What is the position taken to alcohol

A
  • Asmelash, the trial judge right to direct that the normal person is unaffected by alcohol, so D who is under the influence of drink or drugs will succeed unless a sober person might have reacted how he did.
    Could drunkenness ever be a characteristic or circumstance? The CA commented obiter that ‘different considerations would arise if a D with a severe problem with alcohol or drugs was mercilessly taunted about the condition; to the extent that it constituted a qualifying trigger, the alchohol or drug problem would then form part of the circumstances for cosnideration’
42
Q

What does s.54(4) make clear

A
  • ) makes clear that killing ‘in considered desire for revenge’ takes D outside the defence.
43
Q

What happened in Evans

A

killed his wife of 41 years when she threatened to leave him. If he killed by way of defence he would not be able to rely on the defence. However, all provoked killings are likely to include an element of revent, much therefore turns on consideration. The more D thinks about his conduct, the more likely it is to fall within a revenge kllling.

44
Q

Which section disregards sexual infeditlty

A
  • S55(6)(c the fact that a thing done or said constituted sexual infidelity is to be disregarded.
45
Q

Why did the government reject reliance of sexual infidelity

A
  • This has been added by the Government to make clear that a jealous partner who reacts violently to a confession/discovery of infidelity cannot thereby establish the defence.
46
Q

What happened in Clinton regarding sexual infedilty

A
  • Clinton decided that admissions/reports of infidelity whether true or false constitute infidelity.
  • In Clinton, the wife admitted infidelity in graphic detail; suggested that he did not have the courage to commit suicide despite looking at suicide websites; and said he should look after the children as she no longer cared for them.
    The CA held that there is no prohibition on the D telling the whole story about the relevant events, including the fact and impact of sexual infidelity.
47
Q

When may sexual infidelity be considered

A

Sexual infedilty must be disregared for the purposes of the second component if it stands alone as qualifying trigger, but hwere it is ‘integral to and forms an essential part of the context in which to make a just evaultion whether a qualyfing trigger properly falls within the ambit of s.55(3) and (4), the prohibition in s.55(6) does not operate to exclude it’.
s.54(1)(c) a revelavnt circumstance

48
Q

What did Lord Judge CJ say about the reform in Clinton

A

“Unfortunately there are aspects of the legislation which, to put it with appropriate deference, are likely to produce surprising results
- “There is no point in pretending that the practical application of [the qualifying trigger provisions] will not create considerable difficulties”(ibid)

49
Q

Has the reform been effective?

A
  • has the Act succeeded in providing an avenue for defendant’s who are overtaken by fear rather than anger?
  • Are unmeritorious defences likely to be weeded out at an earlier stage?
  • Is there a clearer definition of the objective (normal person) test?
  • Are the excluded cases more clearly articulated?