Law, Loss of Control

What could you write as an Introduction to defence?

D may have a defence of loss of self-control (LOC) under sections 54 and 55 of the Coroners and Justice Act 2009. [This is a partial defence which will reduce the offence of murder to voluntary manslaughter.] 

Firstly in the defence D must lose self-control (s.54(1)(a)) 

Textbook notes:

 

The first element to be satisfied is that [D – insert name] must lose self-control (s.54(1)(a)). There is no definition of loss of self-control in the Act. 

 

The loss of self-control does not have to be sudden (s.54(2)). In Dawes Lord Judge said, ‘Provided there was a loss of control, it does not matter whether the loss was sudden or not.’ 

 

[The defendant’s reaction to circumstances of extreme gravity may be delayed.]  

 

[In Jewell the court said a loss of control was an inability to maintain your actions ‘in accordance with considered judgment’ or had a loss of “normal powers of reasoning.”]   

 

[The defence will fail if the jury find that D’s actions were a ‘considered desire for revenge’ (s.54(4)).]  

What to include in your answer:

- Find out why the defence might have lost control and talk about that

- Look for words like violence, damage and smashed

- Is there a timelapse between the loss of control and killing? This would consider a desire for revenge which will cause the loss of control to fail as revenge isn’t a defence for murder

Secondly in your answer you must identify a qualifying trigger (s.54(1)(b)) 

Textbook notes:

Next, the defendant’s loss of control must have a qualifying trigger (s.54(1)(b)).  

 

The loss of control may be attributable to the defendant having a fear of serious violence from the victim against the defendant, or another identified person (s.55(3)). [Fear trigger] 

 

The loss of control may also be attributable to things done, or said (or both) which:  

 

(a) constituted circumstances of an extremely grave character and  

(b) caused the defendant to have a justifiable sense of being seriously wronged (s.55(4)). [Anger trigger] 

 

[There can be a cumulative impact of a series of events (Dawes).] 

 

[It is not possible to rely on loss of control defence where D’s fear of serious violence, or sense of being seriously wronged, was incited by D for the purpose of providing an excuse to use violence (s.55(6)(a) and (b)).] 

 

[Under s.55(6)(c) in determining qualifying triggers, things done or said constituting sexual infidelity are to be disregarded. However, in Clinton the court held that the jury should consider the totality of the matters relied on in the context of infidelity and examined as a cohesive whole.] 

What to write in your answer:

- Only write about one qualifying trigger as its rarely both

- Sexual infidelity is something that is said and done, so it does not qualify a loss of control

-  Remember these are objective tests: would the reasonable person have had a fear of serious violence for themselves or another or would the reasonable person perceive the things done or said to be of an extremely grave character and would have caused D to have a sense of being wronged? 

 

Thirdly, A person of D’s sex and age with a normal degree of tolerance and self-restraint, and in his circumstances, might have reacted in the same, or similar, way (s.54(1)(c)) 

Textbook notes:

The third element to be satisfied is that a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in his circumstances, might have reacted in the same, or similar, way (s.54(1)(c)).  This is an objective test. 

 

The jury may consider all of D’s circumstances unless they bear on D’s capacity for tolerance or self-restraint, in which case they must be ignored (s.54(3). (Asmelash) 

 

[Account can be taken here of sexual infidelity as a circumstance which may have caused D to have acted the way that they did (Clinton).]   

 

[In Asmelash it was held that D’s intoxication was not a relevant circumstance and should be disregarded by the jury when applying s.54(1)(c).] 

What to write in your answer?

- Apply to which the certain circumstances may be

- Look at exactly what D did in response to the trigger.  May a person of D’s sex and age have acted in a similar way?

- (A person in D’s circumstances may have lost self-control and hit D once, but would they have, for example, repeatedly stabbed V or stamped on them? Did D go too far?)

- Are there any factors which suggest that D’s capacity for tolerance or self-restraint are affected? Are they prone to losing their temper or aggressive when under stress? These factors must be ignored.  

 

What can you write as part of a conclusion?

If the defence is successful, it reduces murder to voluntary manslaughter and D will be sentenced at the discretion of the judge up to a maximum of life imprisonment.

What are the three main paragraphs to be written?

- First the defence must loose control

- You then must identify a qualifying trigger

- A person of D’s sex and age with a normal degree of tolerance and self-restraint, and in his circumstances, might have reacted in the same, or similar, way