Term
| Loss of control and diminished responsibility, are defences which are only available for which offence? |
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Definition
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Term
| Loss of self-control and attempted murder |
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Definition
It is thought that loss of self-control will NOT be applicable to attempted murder
Under provocation = not applicable to attempted murder R v Campbell |
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Definition
| PROVOCATION – NOT APPLICABLE TO ATTEMPTED MURDER |
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Term
| Successful use of the defence reduces the charge to |
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Definition
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Term
| Loss of control replaced what defence? |
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Definition
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Term
| Loss of control was established by which act? |
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Definition
S54 Coroners and Justice Act 2009 (CJA)
S55 CJA 2009 = defines ‘qualifying trigger’
s56 = abolished provocation |
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Term
| S54(1)(a-c) Coroners and Justice Act 2009 has three conditions which must be met, in order to raise the defence of ‘loss of control’ |
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Definition
a)The actus reus occured as a result of D’s loss of self-control
(b)The loss of self-control had a qualifying trigger
(c)A person of D’s 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 in a similar way to D |
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Term
| S54(1)(c) = controversial... |
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Definition
| Controversy = based on the issue of what characteristics of the D, if any, should be attributed to the ‘reasonable man’ in determining whether that ‘reasonable man’ would have reacted as the D did? |
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Term
| DPP v Camplin [1978] – OLD TEST FOR REASONABLE MAN |
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Definition
MUST CONSIDER D TO HAVE 'NORMAL' POWERS OF SELF CONTROL, AND CAN ONLY CONSIDER THOSE CHARACTERISTICS WHICH WERE THE TARGET OF THE TAUNT & WERE DIRECTLY RELATED
Take account of age, sex and characteristics which affected the gravity of the provocation
HOWEVER, allows no room for consideration of the D’s characteristics w.r.t self control... e.g. reasonable man had to have ‘ordinary’ powers of self control |
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Term
| R v Smith (Morgan James) [2001] - OVERTURNED |
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Definition
| Introduced an allowance for the jury to have a more subjective consideration of the D’s power of self-control |
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Term
| Attorney General for Jersey v Holley |
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Definition
objective test for capactiy for self-restraint + limitations on characteristics which can be considered
OVERTURNED R V SMITH (MORGAN JAMES)
Privy Council sat with an enlarged bench of 9 judges, in order to clarify the law in this area
Returned to the test set down in Camplin = objective measure of the D’s powers of self-control... + characteristics only directly related to the taunt |
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Term
| Under S54 (1)(c)CJA will the reasonable man’s capacity for self control = subjective or objective? |
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Definition
OBJECTIVE
S54(3) ‘IN SUBSECTION (1)(C) THE REFERENCE TO “THE CIRCUMSTANCES OF D” IS A REFERENCE TO ALL OF D’S CIRCUMSTANCES OTHER THAN THOSE WHOSE ONLY RELEVANCE TO D’S CONDUCT IS THAT THEY BEAR ON D’S GENERAL CAPACITY FOR TOLERANCE OR SELF-RESTRAINT’
The reasonable man will have ordinary powers of self-control... jury cannot take into account characteristics or circumstances which would affect normal tolerance and ability to exercise restraint...e.g. General bad temper of the D, will not form part of the ‘reasonable man’s’ characteristics. |
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Term
| How will being drunk affect the reasonable man test? |
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Definition
| S54(3) = can be borne in mind w.r.t the situation, however NOT considered w.r.t the reasonable man’s capacity for self-control |
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Term
| What is so significant about this Act? (S54 & 55 CJA 2009) |
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Definition
| It has no case law... therefore requires statutory analysis techniques |
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Definition
NEW ACT DOES NOT DEFINE ‘LOSS OF CONTROL’, HOWEVER, THIS CASE ESTABLISHED WHAT IT MEANT UNDER PROVOCATION, AND UNTIL OTHERWISE, WILL DEFINE WHAT IT MEANS UNDER LOSS OF CONTROL
LOSS OF CONTROL = SOMETHING MORE THAN A MERE LOSS OF TEMPER... BUT NEED NOT BE A COMPLETE LOSS SO THAT THE D DOES NOT KNOW WHAT HE IS DOING
D’s girlfriend told D that the V had raped her
A while later, D confronted V about the rape
V claimed that the girlfriend had been a willing participant
D became enraged and stabbed V to death
D was convicted of murder
D appealed on the grounds that the first instance judge had directed the jury that loss of control = total loss of control ‘that his mind is no longer master of his body, because he has so far lost control, he really does not know what he is doing’
Appeal hearing – outlined that distinction between total loss & more than temper... however, appeal hearing upheld the conviction, on the grounds that the trial judge had not sufficiently misdirected (e.g. what the judge said didn’t necessarily mean that loss of control must mean automatism), and the jury were still potentially understanding ‘loss of control’ in the correct way |
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Definition
| Acting out of revenge does not = loss of control |
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Term
| R v Ibrams and Gregory [1982] |
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Definition
CANNOT = REVENGE!!!
D’s and their spouses had been tortured, bullied and terrorised by the V for several weeks
The police had been informed, but had taken no action
The D’s devised a plot to attack the victim at night... they stabbed him with an axe and a knife whilst he was asleep and killed him
First-instance trial found them guilty
D’s appealed on the defence of provocation
Appeal judge ruled that provocation was not an available defence
Ratio decidendi – ‘circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation’
NOTE – 2009 LOSS OF CONTROL WOULD ALSO NOT BE APPLICABLE, DUE TO S54(4)
NOTE JUDGES SUMMING UP WORDS – ‘the court wishes to say that this case is a most unusual one, and had it not been for the appalling criminal behaviour of the V, these two D’s wouldn’t be serving life sentences for murder. It is to be hoped that a copy of this judgement will be sent to the appropriate department of the Home Office and that the parole board will as soon as possible be alerted to the very unusual and disturbing facts of this case’ |
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Term
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Definition
Loss of control need not be sudden (remains open to the jury in each individual case to consider the length of the delay in deciding whether = loss of control, along with all other facts/evidence)
Contrast with provocation, where loss of control had to be immediate |
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Definition
| s55 Coroners and Justice Act 2009 |
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Term
| The qualifying trigger – s55 CJA |
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Definition
S55(3) If D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person
S55 (4) If D’s loss of self-control was attributable to a thing or things done or said (or both) which –
i. Constituted circumstances of an extremely grave character, and
ii. Caused D to have a justifiable sense of being seriously wronged
WILL THIS TEST = OBJECTIVE OR SUBJECTIVE?? = UNDECIDED... HONOUR KILLINGS... SUGGESTION BY LECTURER THAT IT WILL = OBJECTIVE |
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Term
| The qualifying trigger will be negated if – s55 (6) |
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Definition
D incited the violence, in order to create an excuse to use violence
D incited the thing which was said/done, in order to create an excuse to use violence |
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Term
| The qualifying trigger will be negated if – s55(6)(c) |
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Definition
The defence cannot be relied on if the thing said/done constituted sexual infidelity
E.g. adultery is NOT a trigger for loss of control |
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Term
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Definition
LOSS OF CONTROL MAY BE FOUND TO BE APPLICABLE TO SOME CIRCUMSTANCES WHERE THE D = THE INITIAL ANTAGONIST
D had been drinking in a nightclub
D made threats of violence against the V
Struggle ensued and D stabbed V
Court of appeal held that was an available defence |
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Term
| Suggestion that s55 (3) was introduced for what purpose? |
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Definition
Designed to cover a situation where a jury might conclude that the defendant was justified in using force to defend himself, but that the level of force used was unreasonable, thus preventing the defence of self-defence from operating (self-defence = reasonable force to protect yourself)
R v Martin (Anthony) [2002] |
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Term
| R v Martin (Anthony) [2002] |
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Definition
VIOLENCE USED IN SELF-DEFENCE, BUT LEVEL OF FORCE USED = MORE THAN REASONABLE... THEREFORE, DEFENCE OF SELF-DEFENCE FAILS
D had burgled a number of times, therefore, in order to protect himself, he set up a number of booby traps around his house
When two burglars came to his house, he shot at them with a shot gun
One of the burglars died
D raised the defence of self-defence, however, because he had used ‘excessive force’, self-defence was not an available defence
D was convicted of murder |
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Term
| GENERAL POINT ON OBJECTIVE VS SUBJECTIVE INTERPRETATIONS/APPLICATIONS |
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Definition
SUBJECTIVE = WIDER SCOPE = EASIER TO FIND NOT GUILTY
OBJECTIVE = NARROWER SCOPE |
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Term
| Causes the D to have a justifiable sense of being seriously wronged... how is this applied, objective or subjective? |
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Definition
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Definition
CASE ESTABLISHED UNDER ‘PROVOCATION’, HOWEVER MAY BE TAKEN AS AN EXAMPLE OF WHEN NEW TRIGGER (S54(4)) WOULD ARISE
THERE CAN BE A DELAY BETWEEN TRIGGER AND EVENT, HOWEVER, JURY/PROSECUTION CAN TAKE THIS IN TO ACCOUNT IN DECIDING WHETHER THERE WAS A 'LOSS OF CONTROL'
D was married to V
V had been violent towards D for a number of years
One night, V said that he was going to beat her the next morning
When V fell asleep, D poured petrol over him and set him alight, causing him to die
D raised the defence of provocation
Court ruled that for loss of control, need not = immediate response, but the prosecution.jury were entitled to take delay into account (+planning D had made in this case) in deciding whether there had been a loss of control as a consequence of the trigger.
JUDGE STATED THAT... IT IS LIKELY THAT THE LONGER THE DELAY (+ THE MORE PLANNING), THE MORE LIKELY THE THE DEFENCE OF LOSS OF CONTROL WILL NOT STAND... HOWEVER, MUST BE BASED ON FACTS OF CASE... WILL = DIFFERENT IN DIFFERENT CIRCUMSTANCES
D lost the appeal on loss of control, however she was later acquitted on diminished responsibility |
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Definition
CASE ESTABLISHED UNDER ‘PROVOCATION’, HOWEVER MAY BE TAKEN AS AN EXAMPLE OF WHEN NEW TRIGGER (S54(4)) WOULD ARISE
D’s son informed D that the V was a drug dealer who had threatened him
D drove to the V’s house with a shotgun and razor
D confronted V, slashed his throat and shot him twice
D died
D successfully raised the defence of provocation |
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Term
| s54 (1) (a-c) questions to ask to establish defence, all must be achieved... case law helps to identify what is meant by the questions... |
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Definition
a) Did the D kill another person as a result of losing control?
b) Did the loss of control have a qualifying trigger?(Objective or subjective??? e.g. honour killings)
c) Might a REASONABLE PERSON have acted in the same or similar way?(subjective test, but not subjective w.r.t capacity for self-control) |
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Definition
DOES NOT HAVE TO BE COMPLETE LOSS OF CONTROL... BUT THE FACTS OF THIS CASE INDICATE THAT IF YOU HAVE A REASONABLE AMOUNT OF AWARENESS, LOSS OF CONTROL WILL NOT BE APPLICABLE
D and V were married.
V had repeatedly asked D to commit euthanasia on her
D claims that he eventually ‘snapped’, lost control and gave in
During the process, D claims that he got the impression the V had changed her mind, so he stopped smothering her with the pillow to check
V grabbed on to the pillow and pulled it back on the her face
Court ruled that D had not lost control, because he had enough mental awareness to stop himself to double-check that V had not changed her mind |
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