Special Defence (LOC) - TOPIC 5

Loss of Control

Definition (AO1)

Where D is charged with murder, D may raise evidence (an evidential burden only) that he killed with MR but as a result of losing self-control in response to certain circumstances

(Up for judge to decide if evidence is sufficient to put defence to the jury) (R v Barnsdale-Quean)

• Special Defence: Only available for murder

• Partial Defence: When successful, D is acquitted of murder but convicted of voluntary manslaughter.

(Removes Mandatory Life sentence but still has a max sentencing of life)

Loss of Control

Statute (AO3)

s.54 & 55 Coroners & Justice Act 2009

Recommendation by Law Commission to replace provocation.

Loss of Control - BOP

Rule (AO1)

Under s.54 (5), the BOP is on the P to disprove the Defence where evidence of LOC is allowed in court.

P must prove that D killed without loss of self-control

Loss of Control - SOP

Rule (AO1)

Beyond all reasonable doubt

Elements required for LOC

Definition (AO1)

1. The killing resulted from D’s loss of self-control

   s.54 (1)(a)

2. and the loss of self-control had a Qualifying Trigger

   s.54(1)(b):

   1. Fear of Serious Violence = Fear Trigger s.55(3)

      and/or

   2. Things done/said of extremely grave character (a) which caused D to have justifiable sense of being seriously wronged (b). = Anger Trigger s.55(4)

3. A person (see characteristics) might have reacted as D S.54 (1)(c)

Fact of Loss of control s.54 (1) (a)

Definition (AO1)

Under common law: “Loss of control connotes a loss of ability to act in accordance with considered judgement or a loss of the normal powers of reasoning”

-Wholly Subjective Test

So jury will take all relevant evidence into account - including the severity of triggering conduct and D’s own temperament

Fact of Loss of control s.54 (1) (a)

Case (AO3)

(R v Jewell)

Timing of LOC and the killing s.54 (2) - Relates to (1) (a)

Definition (AO1)

D’s loss of self-control need not be sudden,

BUT

A lapse of time may be relevant as to whether the jury find that D had in fact lost his self-control at the moment he killed

Timing of LOC and the killing s.54 (2) - Relates to (1) (a)

Consider (AO2)

Consider the time interval between:

1. Qualifying trigger

2. The Loss of control

3. The killing

If exam Q says “next day” then this is worth discussing.

The longer the time lapse, the more likely the jury will believe that D killed in ‘a considered desire for revenge’

Considered desire for revenge s54 (4)

Definition (AO1)

Defence not available where, D takes a deliberate and considered decision to kill.

Not fatal to defence that D has feelings of hatred or revenge - just whether the killing was a calm and considered one.

Qualifying Triggers s.55

Definition

D’s loss of self-control must be attributable to / caused by one or more of the following QTs:

1. D’s fear of serious violence - Fear Trigger - s.55 (3)

   and/or

2. Things said/done… - Anger Trigger - s.55 (4) (a) & (b)

   and/or

3. Combination of s.55 (3) & (4) - s.55 (5)

Fear Trigger = D’s fear of serious violence s.55 (3)

Definition (AO1)

Where D’s Loss of self-control is attributable to:

-D’s fear of serious violence by V:

• To D

  or

• To another identified person

• Not where D anticipates attack on people generally

2 situations:

1. Where D kills to prevent being attacked (Not necessarily imminently) - unlike self defence

2. Where D overreacts to (threat of) attack - does not mean defence will fail. Unlike self defence where force must be proportionate to threat D perceives.

(D’s belief of violence is subjective but severity of believed violence is objective)

D incites fear trigger s.55(6)(a)

Definition (AO1)

D may not rely on defence where his fear of serious violence is something he incited V to do (i.e. was self-induced)

D incites fear trigger s.55(6)(a)

Case (AO3)

(Dawes)

D found wife and V asleep on the sofa. D incited violence so defence did not succeed.

Anger Trigger = Things done and/or said… s.55 (4) (a) & (b)

Definition (AO1) Learn word for word!!!

Where LOC is attributable to:

-Things done - V’s conduct/actions and/or

-Things said - by V (difficult circumstances alone are not sufficient. I.e. the strains being with a crying baby

-The things said or done need not come from the V

The things done and/or said MUST:

• (a) Amount to circumstances of an extremely grave character (Objective) AND

• (b) Cause D to have a justifiable (Objective) sense of being seriously wronged (Objective).

Things said or done need not come from V

Case (AO3)

(R v Davies)

D killed wife (v) after being provoked by V’s lover.

This would qualify under new law

Circumstances of Extremely grave character

Case (AO3)

(R v Hatter)

Break-up of a relationship did not qualify

(R v Bowyer)

Burglar could not rely on anger trigger when householder reacted violently to his presence and made insulting remarks about his gf.

Not seen as ‘extremely grave circumstances’

Justifiable sense of being seriously wronged

Case (AO3)

(R v Mohammed)

Devout muslim who killed his daughter for having a relationship before marriage.

Reasonable man would not regard him as justified in feeling seriously wronged. Own perception is not relevant

Sexual infidelity s.55 (6) (c)

Definition (AO1)

Where the triggering conduct/words amount to sexual infidelity, these must be disregarded i.e. they can not amount to a qualifying trigger.

But

Where there are OTHER qualifying triggers, the context of sexual infidelity may be considered under all the circumstances.

(No definition in the act for sexual infidelity)

Sexual infidelity s.55 (6) (c)

Case (AO3)

(R v Clinton)

D’s wife left him and he found evidence that she had affairs. D was suffering from depression and was on meds. D’s wife taunted him with details of sexual exploits and stated that she would leave the kids.

D incites anger trigger s.55 (6)(b)

Definition (AO1)

D may not rely on defence where the things said or done are something he incited i.e. self-induced

Combination of Fear and Anger trigger s.55 (5)

Definition (AO1)

D’s LOC may be attributable to a combination of:

• Fear of serious violence

• Things done/said

I.e. A wife who kills her husband after years of abuse who loses control as a result to things said and done to her and as a result of fear of further serious violence.

Objective / ‘Normal’ / Ordinary Person Test s.54 (3) relating to s.54 (1) (c)

Definition (AO1)

The jury must decide: might (more generous than would) a person with normal tolerance and self control in all D’s circumstances have reacted in the same/similar way to D (Objective Test).

Take into account D’s:

• Sex

• Age

Background circumstances and particular characteristics of D are considered but NOT any (abnormal) degrees of tolerance or self-control i.e. being short tempered.

(Being short tempered would be relevant to fact that D did actually lose control s.54 (1) (a) but not the ordinary person test (3)

Relevant Circumstances of D

Examples and cases

• Epilepsy, unemployment and depression (Gregson)

• Sexual abuse suffered as a child (Hill)

LOC while D is intoxicated

Rule (AO1)

The jury should disregard D’s intoxication and apply the reasonable man test as if D was sober to decide on LOC

LOC while D is intoxicated

Case (AO3)

(R v Asmelash)

D and V spent all day drinking but started to fight. D stabbed V to death