Loss Of Control

Question 1

Definition

Answer 1

The definition comes from s54 of the Coroners and Justice Act

The required elements are:

1. An actual loss of control
2. Caused by a qualifying trigger
3. That a person of the same sex and age as D with normal self control might have done the same/similar

Question 2

1. Loss of control

Answer 2

Test is subjective and objective
Did D in fact lose control?
Did the loss come from a qualifying trigger?
if so would a person with D’s characteristics have reacted in the same or similar way?

R v Miao - D strangles his partner. D denied losing self control so he didn’t have access to the defence

Loss of control need not be sudden, this covers slow burn or cumulative provocation as seen in R v Ahluwalia

Question 3

2. Qualifying trigger

Answer 3

There will be a qualifying trigger if 1. D’s loss of self control was caused by D’s fear of serious Violence from V against D or another identified person.

Cannot be fear that the victim will, in future, use serious violence against people generally.

D’s fear need only be genuine not reasonable.

2. D’s loss of self control was caused by a thing or things done or said which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged. This will be a question of fact for the jury.

Domestic abuse will amount to a ‘thing done’ causing D to feel seriously wronged. A killing based on something ‘said’ will usually be more difficult to justify.

Question 4

3. Reasonable person would have reacted in the same/similar way.

Answer 4

Jury just consider all of D’s circumstances. The fact that D has a bad temper will not be taken into account - Luc Thiet Thuan.

Question 5

Limitations

Answer 5

Defence does not apply is
D acted in a considered desire for revenge

D provoked the violence
The thing said/done was sexual infidelity - r v Clinton. Sexual infidelity cannot be relied upon as its own qualifying trigger but its existence does not prevent reliance on the defence where there exist other qualifying triggers.

Question 6

Burden of proof

Answer 6

Must be SOME evidence of loss of control. This is for the judge to decide

If so, the jury are told the burden is on the PROSECUTION to prove beyond reasonable doubt that the case is NOT one of loss of control

Question 7

Effect

Answer 7

D is convicted of manslaughter instead of Murder if successful