Vol MS - LoC Flashcards
Loss of control
Loc is a voluntary manslaughter, so it is a defence, not an offence, meaning there is no actual reus or mens rea required.
LoC is a partial defence to murder, reducing a murder conviction to a manslaughter.
Loc is described in s54 of the Coroners and Justice Act 2009 through a 3 stage test:
1) the D must lose control
2) because of a qualifying trigger
3) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the same circumstances, might have reacted in the same/similar way to D
S54 of CJA 2009 - stage 1 and 3
S54(1)(b) - control must be lost, regardless of whether it was sudden or not. It can still be put before a jury where there has been a delay between the trigger incident and the murder.
- Lady Justice Rafferty in R v Jewell
S54(1)(c) - a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the same circumstances, might have reacted in the same/similar way to D
- additional characteristics may be relevant when assessing the circumstances of the D (the impact of sexual infidelity is not excluded here)
s54(3) - the D’s general capacity to exercise tolerance and self-restraint are to be disregarded
S54(4) - the defence of loss of control cannot apply where the D acts in a desire for revenge, even if the D loses control as a result of one of the qualifying triggers under s55
S55 of CJA 2009 - stage 2
Defines qualifying trigger:
‘Fear trigger’ - s55(3)
- s55(3) - the D will have to show that they genuinely feared that the V would use serious violence towards D or another person, regardless of if the fear was reasonable
- s55(6)(a) - the violence cannot be incited by the D
‘Anger trigger’ - s55(4) - can be something said/done by V that:
- s55(4)(a) - constituted circumstances of extremely grave character
- s55(4)(b) - caused the D to have a justified sense of being wronged under s55(4)
- this is for the jury to determine having applied an objective test
S55(5) - applies if there was a combination of ‘fear trigger’ (s55(3)) and ‘anger trigger’ (s55(4))
Burden of proof
If the D raises the issue of LoC and the judge believes that a properly directed jury could reasonably conclude that the defence might apply, then the burden is on the prosecution to prove beyond reasonable doubt that there was no LoC.
R v Clinton
All elements
Sexual infidelity - cannot identify by itself as a qualifying trigger, but can be taken into account where there exist other qualifying triggers
S54(1)(c) - examining the D’s circumstances (same person of similar….)
‘Anger trigger’
- s55(4)(a) - whether things done or said amounted to extremely grave circumstance
- s55(4)(b) - D had a justified sense of being wronged
R v Gurpinar and Kojo-Smith
Lord Thomas CJ: ‘it should be necessary to look at cases decided under the old law of provocation’
R v Hatter
Anger trigger - s55(4)(a)
For extremely grace character, the breakdown of a relationship, by itself, is not sufficient
R v Bowyer
Anger trigger - s55(4)(b)
The D had no justified sense of being wronged given that he was committing a burglary at the time of the offence
R v Dawes
Qualifying triggers - s55
The qualifying triggers under s55(3),(4) and (5) still apply despite D’s bad behaviour, unless his behaviour/actions intended to provide him with the excuse or opportunity to use violence
R v Asmelash
Alcohol and drugs
D cannot rely on LoC where self-administered drugs or alcohol impaired his normal judgement
R v Rejmanski
Qualifying triggers
In principle, PTSD could justify LoC
LoC plan
Define - voluntary manslaughter, so it is a defence, not an offence, meaning there is no AR or MR required
- partial defence to murder and reduces murder conviction to MS - R v Gurpinar and Kojo-Smith
Law - described in s54 of Coroners and Justice Act 2009 through 3 stage test:
1) D must lose control
2) because of qualifying trigger
3) person of D’s sex and age, a normal degree of tolerance + self-restraint + in same circumstances, might have reacted in the same/similar way to D
S54 - stage 1 and 3:
S54(1)(b) - control must be lost, regardless of sudden or not. It can still be put before a jury where there has been a delay between the trigger incident and the murder - Lady Justice Rafferty in R v Jewell
S54(1)(c) - a person of D’s sex and age, with a normal degree of tolerance + self-restraint + in same circumstances, might have reacted in the same/similar way to D - R v Clinton
- additional characteristics may be relevant when assessing circumstances of D (eg impact of sexual infidelity)
s54(3) - the D’s general capacity to exercise tolerance and self-restraint are to be disregarded
S54(4) - the defence of LoC cannot apply where the D acts in a desire for revenge, even if the D loses control as a result of one of the qualifying triggers under s55
Apply….
S55 - stage 2:
Defines qualifying trigger:
‘Fear trigger’ - s55(3)
- s55(3) - D shows that they genuinely feared that the V would use serious violence towards D or another person, regardless of if the fear was reasonable
- s55(6)(a) - the violence cannot be incited by the D
‘Anger trigger’ - s55(4) - can be something said/done by V that:
- s55(4)(a) - constituted circumstances of extremely grave character - R v Hatter
- s55(4)(b) - caused the D to have a justified sense of being wronged under s55(4) - R v Bowyer
- this is for the jury to determine having applied an objective test - R v Dawes, R v Asmelash, R v Rejamanski
S55(5) - applies if there was a combination of ‘fear trigger’ (s55(3)) and ‘anger trigger’ (s55(4))
Apply….
Burden of proof - If D raises the issue of LoC and the judge believes that a properly directed jury could reasonably conclude that the defence might apply, then the burden is on the prosecution to prove beyond reasonable doubt that there was no LoC.
Apply…
Conclusion - If D satisfies all staged of LoC under s54 and s55 of CJA 2009, they satisfy the requirements for defence of LoC, reducing a murder conviction to one of MS.
R v Jewell
Lady Justice Rafferty: ‘Loss of control is considered by the authors of Smith and Hogan 13th edition to mean the loss of an ability to act in accordance with considered judgement or a loss of normal powers of reasoning’
