Loss of Control

Intro

D may have a defence of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009.

1. d must lose control

The first element to be satisfied is that d 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 defence will fail if the jury find that D’s actions were a ‘considered desire for revenge’ (s.54(4))]

2. there must be a qualifying trigger

Next, the d’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 agasinst the defendant, or another identified person (s.55(3)).

The loss of control may also be attributable to things done, or said, 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)).

[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 a 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.]

3. sex and age

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]