loss of control Flashcards
What is voluntary MS
- Where the AR and MR for murder are satisfied, special circumstances may reduce the offence from murder to manslaughter
What is the rationale for partial defences
- The rationale for a partial defence appears to be a strong one, as it goes directly to the issues of capacity and responsbilty.
where was the defence of LOSC developed from
- The common law developed a partial defence of provocation which was subsequently recognised in the Homicde Act s.3.
Now recognised by the CJA
What was provocation based on
- 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.
What did Hayward describe the defence of provocation as
the alternative rationale was a compassion for human infirmity- this provides an excuse rather than a partial justification.
What did Wells critics the defence of provocation as
- Wells argued that that both rationale were problematic as the defence contained an ‘unappealing message condoning anger over self-restraint’
However despite the criticism why was the defence of provocation needed
- 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.
Where did reform to LOSC come from
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.
What is the first problem with the defence of provocation
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.
which case showed that slight incident could trigger provocation
- 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.
what was the second issue of provocation
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.
What was the last issue with provocation?
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’.
case showing the reasonable man acquiring a dubious set of precedents
- 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.
What are the components of loss of control
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.’
What will d be convicted of if the defence is sucessful
- By s.54(7), D who falls within s.54 is to be convicted of manslaughter instead
What burden of proof is required
- 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.
who decides if there is sufficient evidence to raise a defence
- 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
What is the first requirement
that D lost self control s.54(1)
Which S indicates any loss need not be sudden
s.54(2), thus acclimating for the slow burn situations