Loss Of Control Template - Defence To Murder ONLY Flashcards
D has been found guilty of murder and so a potential and partial defence that could be available is….
Loss of control.
This is a specific defence to murder and works on the basis that there is reduced fault because D lost control following provocation.
The definition of loss of control is set out….
Under s54 of the Coroners and Justice Act 2009.
D must provide evidence of 3 requirements and the prosecution must disprove the evidence beyond reasonable doubt.
Determining whether Ds conduct was caused by a….
Loss of control is a subjective test.
in R v Dawes the CoA confirmed that ‘ provided there was a loss of control it doesn’t matter whether the loss was sudden or not.’
R v Jewell provided further guidance which summarised loss of control as ‘ a loss of ability to act in accordance with considered judgement or loss of normal powers of reasoning.’
By virtue of S54.4 if D acted in a considered desire for revenge they cant be said to have lost their control.
APPLICATION: what did D do which shows a clear loss of control?
Next the jury must decide……
Whether the loss of control has a qualifying trigger under S55 CJA 2009.
ONLY WRITE IF FEAR OF SERIOUS VIOLENCE IS RELEVANT OTHERWISE FIRST TRIGGER IS NOT RELEVANT.
The first trigger under…..
S55(3) is whether D believed he or another person was under the threat of serious violence from the victim.
In R v Ward D successfully pleaded loss of control after killing a victim who physically attacked Ds brother at a party.
S55 states the defence will not succeed where Ds fear of serious violence is self induced.
APPLICATION: did D believe he or another person was under the threat of serious violence from V? How? Why?
The second trigger under…..
S55 is whether things said or done were of extremely grave character which gave D a justifiable sense of being wronged.
S55 states sexual infidelity is excluded in this trigger however in R v Clinton the CoA stated that sexual infidelity didn’t have to be completely disregarded.
It could be considered if it was necessary to and formed an essential part of the context where there were other factors which could be qualifying triggers.
APPLICATION: what was said or done of extremely grave character? Did it lead to D having a justifiable sense of being wronged?
The final test is whether a person….
Of Ds sex and age with a normal degree of tolerance and self restraint would have reacted in the same way if he was in the same circumstances as D was.
Only sex and age can affect Ds power to keep their self control because all other characteristics relate to Ds circumstances and may affect the seriousness of the provocation.
The more taunts that relate to Ds circumstances the more likely it is they could have lost their control.
In R v Gregson the fact D was unemployed, had epilepsy and depression were circumstances which could be taken into consideration because the taunts were related to these facts. However the fact that he didnt have a normal degree of self restraint due to his epilepsy and depression could not be taken into consideration.
APPLICATION: Did D lose his loss of control compared to someone with the same sex, age and normal degree of self restraint?
In conclusion…..
D can/ cant use the defence of loss of control because……
If Ds defence would succeed then it would reduce the offence of murder to voluntary manslaughter.
