Special Defences - Loss of Control + Dim Res Flashcards
Loss of Control Legislation
s54-55 Coroners and Justice Act 2009
Definition of loss of control
‘has D lost the ability to act in accordance with considered judgment or… [has he] …lost normal powers of reasoning’. (Jewell)
s54(2) states the loss of control need not….
the loss of control need not be sudden (Dawes)
s54(4) excludes killings where
excludes killings where D acted in a ‘considered desire for revenge’
Qualifying triggers
Fear - Lodge, Ward. s55(3)
Anger - s55(4)
Both s55(5)
Fear trigger
Ds fear of serious violence from V against D or another identified person
s55(3)
Anger trigger
A thing said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged
s55(4)
Restrictions
s55(6) - D incites violence as an excuse to use force - cant rely on qualifying trigger (Dawes)
s55(6)(c) - if a thing said/done amounts to sexual infidelity - should be disregarded. HOWEVER - infidelity plus (as in Clinton) where there are other triggers and infidelity forms an essential part of context.
Normal Person Test
requires jury to decide whether a ‘person of Ds 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 similar way to D.
s54(1)(c) + s54(3) - circumstances means all circumstances surrounding and leading up to killing except those that relate soley to Ds tolerance and ability to exercise self control - eg. PTSD (Rejmanski)
Loss of Control Summary
1 - Loss of Self Control - Jewell, s54(2), s54(4)
2 - Qualifying trigger - fear, anger, both -s55(3,4,5)
3 - Restrictions - incited violence s55(6), sexual infidelity s55(6)(c), infidelity plus - Clinton
4 - Normal Person Test - s54(1)(c) Ds sex, age, normal degree of tolerance and self restraint, and in circumstances
s54(1)(c) + s54(3) - circumstances
Loss of Control Full AO1 Template
It is likely that D could raise the defence of loss of control under s54-55 of the Coroners and Justice Act 2009.
First, D must prove that he lost self control when doing the act which caused death. To determine this, we use the following test from Jewell - ‘has D lost the ability to act in accordance with considered judgment or… [has he] …lost normal powers of reasoning’. Under s54(2), the loss of control need not be sudden (Dawes), however s54(4) excludes killings where D acted in a ‘considered desire for revenge’, APPLY
There must be a qualifying trigger for the loss of control. s55 sets out permitted qualifying triggers - where the loss of control was attributable to ‘Ds fear of serious violence from V against D or another identified person (Ward) (s(55(3)) OR a thing said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged s55(4). Alternatively, the qualifying trigger can be a combination of both fear and anger (s55(5)). Subsection 4 sets a very high threshold for the circumstances in which the defence is available - eg. Hatter - break up failed. Whether a defendents sense of being seriously wronged is justifiable will be an objective test for the jury to decide (Zebedee)
**When looking at possible restrictions, s55(6) - D incites violence as an excuse to use force - cant rely on qualifying trigger (Dawes)
s55(6)(c) - if a thing said/done amounts to sexual infidelity - should be disregarded. HOWEVER - infidelity plus (as in Clinton) where there are other triggers and infidelity forms an essential part of context.**
The Normal Person Test - requires jury to decide whether a ‘person of Ds 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 similar way to D.
s54(1)(c) + s54(3) - circumstances means all circumstances surrounding and leading up to killing except those that relate soley to Ds tolerance and ability to exercise self control - eg. PTSD (Rejmanski)
Diminished Responsibility Legislation
S52 of the Coroners and Justice Act 2009
Abnormality of mental functioning test
‘Was Ds mental functioning so different from that of ordinary human beings that a reasonable person would term it abnormal’ - Byrne
What does a recognised medical condition include
- previously recognised medical conditions eg. Schizophrenia (Moyle) Paranoid Personality Disorder (Martin) and Alcohol Dependency Disorder (Stewart).
- court also recognises conditions in diagnostic manuals. Both ICD11 and DSM5
What must the AOMF do
Substantially impair his ability to understand the nature of his conduct, form a rational judgement, or exercise self control.
What does substantial mean
Significant or appreciable - Golds
What must the AOMF provide?
Must provide an explanation for Ds conduct - rules out cases of random coincidence (Lowes) and will be satisfied where the AOMF causes, or is a significant contributing factor in causing D to carry out the conduct.
Rules of alcohol in Dim Res
- being drunk or high is not sufficient to be considered an AOMF
- where D is intoxicated and has a mental disorder jury decide if disorder constituted AOMF on its own (Dietschmann)
- where the act or omission of D is due to extreme alcohol consumption diagnosed as ADS, it may amount to an AOMF - if yes jury consider effect of alcohol consumed because of addiction - any consumed voluntarily must be ignored (Stewart)
Diminished Responsibility Summary
1 - s52 CAJA 2009
2 - Abnormality of mental functioning
3 - AOMF arisen from a RMC
4 - AOMF substantially impaired ability to understand…
5 - AOMF must provide explanation for Ds conduct
Diminished Responsibility Complete AO1 Template
D could raise the special defence of dim res under s52 CAJA 2009.
The first matter to be proved is that D was suffering from an abnormality of mental functioning (AOMF). To establish this, courts use the test from Byrne - ‘Was Ds mental functioning so different from that of ordinary human beings that a reasonable person would term it abnormal’ APPLY
Secondly, the AOMF must arise from a recognised medical condition (RMC). Whilst there is no definition of RMC provided, it will include previously recognised medical conditions such as Schizophrenia (Moyle) Paranoid Personality Disorder (Martin) and Alcohol Dependency Disorder (Stewart). The court also recognises conditions in diagnostic manuals. Both ICD11 and DSM5. APPLY
The third component is that the AOMF substantially impairs his ability to understand the nature of his conduct, form a rational judgement, or exercise self control. Substantial has been held to mean significant and appreciable in Golds. APPLY
Finally, the AOMF must provide an explanation for the defendants conduct - this rules out cases of ‘random coincidence’ (Lowes) and will be satisfied where the AOMF causes, or is a significant contributory factor in causing D to carry out the conduct. - FACTUAL AND LEGAL CAUSATION
If successful, what do both loss of control and diminished responsibility (special defences) result in?
Acquittal
