Term
| • Loss of control is new defense which was introduced by |
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Definition
| section 54, 55, and 56 of the Coroners and Justice Act 2009. |
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Term
| • Loss of control is a defense only to: |
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Definition
| murder, and is only a partial defense |
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Term
| • Loss of control replaced the previous defense of Provocation which was found in |
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Definition
| section 3 of the Homicide Act 1957 |
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Term
| • If defense of loss of control is successfully pleaded, a charge of murder will be reduced to |
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Definition
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Term
| • Section 54 of the Coroners and Justice Act 2009 sets out a 2-part test for loss of control which is similar to the 2-part test in the old law of provocation. |
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Definition
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Term
➢ Provocation (Old Test)
o Subjective portion: |
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Definition
| Was the D provoked by things said or done to suffer a sudden and temporary loss of control? |
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Term
Provocation (old test)
Objective Portion: |
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Definition
| Would the reasonable man have been provoked and acted in the way the D did? |
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Term
➢ Loss of control (new test)
o Subjective Portion: |
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Definition
| Did the defendant suffer a loss of control (which need not be sudden) as a result of one of the qualifying triggers listed in section 55 of the CJA 2009? |
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Term
Loss of Control (New test)
Objective Portion: |
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Definition
| Would a person of the defendant’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstances as the defendant have reacted in the same or similar way? |
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Term
| o The objective portion of the new law replaces the ‘reasonable man’ objective portion of the old law of provocation, which was set out in the case of |
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Definition
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Term
| o When discussing the objective portion of the new law, these two cases show the former difficulty of the reasonable man test as it was under provocation: |
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Definition
R v Smith [2001],
AG for Jersey v Holley [2005] |
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Term
| o With the new law, the D is compared to a person of |
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Definition
| a person of the same sex and age who is in similar circumstances (the moment of stress or anger which causes a loss of control). However, the Defendant will not be compared to a person with similar tolerance or self-restraint. Instead the D will be compared to a person with a “normal” sense of tolerance and self-restraint. This is to prevent a D from relying on loss of control if they are particularly short tempered or prone to violence. |
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Term
| • The new law, Loss of control, was introduced to |
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Definition
| overcome weaknesses associated with the former defense of provocation. |
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Term
| What case affirmed that the defense of provocation could only be used if there had been a ‘sudden and temporary loss of control’? |
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Definition
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Term
| Two cases where the requirement of suddenness caused problems for women who had suffered years of abuse: |
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Definition
➢ R v Ahluwalia [1992]:Set her husband on fire.
R v Thornton [1992]: Stabbed her husband |
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Term
| Name 2 debated issues that led to LOC law reform: |
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Definition
1. Concerns about women who had suffered a ‘slow burn’ not being able to rely on provocation defense.
2.The need for the law to be gender neutral, in recognition that men and women respond differently to provocation and kill in different circumstances. |
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Term
| Name the quote source from the debated issue of gender neutrality: "the law is thought to be especially ‘user friendly’ to men. When women kill, it tends to be in response to an extreme situation involving a fear of violence to themselves or their children" |
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Definition
| ➢ Law Commission No. 304 para 5.62 |
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Term
| Name the quote source from the debated issue of gender neutrality: Women do not often kill from anger, while anger is what fuels many male killings. |
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Definition
| ➢ ‘Getting Tough With Defences’, Quick and Wells (2006) |
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Term
| • The new defense of loss of control seeks to accommodate: |
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Definition
| ‘slow burn’ aka cumulative provocation. |
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Term
| Define Cumulative Provocation |
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Definition
| Cumulative provocation is a situation that has built up over a period of time and is composed of a series of separate incidents, one of which culminates in the defendant losing control and killing |
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Term
| • The removal of the ‘suddenness requirement’ does help accommodate cumulative provocation, however it causes an issue with timing, with regard to: |
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Definition
| Revenge killings as found in CJA 2009 S-54(4). |
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Term
| Remember to discuss issue of revenge killings and how someone might easily have a loss of control and want revenge |
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Definition
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Term
| • The issue of ‘considered desire for revenge’ was discussed at |
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Definition
| the Committee stage of the CJA Bill’s passage in 2009. |
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Term
| Considered’ is defined as |
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Definition
| “characterized by careful thought”. |
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Term
| o A distinction will be made between heat of the moment attacks (desire for revenge) |
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Definition
| and cold-blooded planned killing (considered desire for revenge). |
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Term
| Name the two qualifying triggers: |
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Definition
1. Fear of Serious Violence
2. Things said or done of an “Extremely Grave Character” which” Caused Justifiable Sense Of Being Seriously Wronged”. |
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Term
• Fear of Serious Violence
The D may fear that violence will be used against them or: |
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Definition
| or against a third party. NB The third party must be a specific person, rather than people in general. |
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Term
| Where does it say that the test for fear of violence will be subjective? |
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Definition
| the Explanatory Notes that accompany the Coroners and Justice Act 2009 |
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Term
| Distinguish Loss of Control from Self-Defense: |
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Definition
self-defense can apply to any offence, whereas loss of control can only be used as a defense to murder.
• It is possible that loss of control will be useful to Ds who used fatal force in a situation where it was not necessary with relation to the threat they faced, which would preclude self-defense |
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Term
| What portion of qualifying triggers has case law yet to define? |
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Definition
| ‘extremely grave character’ |
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Term
| Where does it say that that ‘justifiable’ is indicative of an objective test- as relating to justifiable sense of being seriously wronged? |
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Definition
| The explanatory notes of the CJA say this. Therefore even if a jury agrees that things said or done to a D were of ‘extremely grave character’ they may not feel that it caused a ‘justifiable sense of being seriously wronged’ |
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Term
| Which case might a jury not feel was 'justifiable sense of being seriously wronged'? |
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Definition
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Term
| Name the three exclusions to Loss of Control defense: |
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Definition
1. D incited things said or done which caused him to fear serious violence.
2. D incited words/conduct that caused him to be seriously wronged enough to seek violence.
3. The thing said or done to cause D to lose control was sexual infidelity. |
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Term
| The exclusions of inciting, solved issues with problem cases like: |
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Definition
• R v Johnson [1989]
D started an argument which caused the victim to threaten D. D responded by stabbing the victim and was able to rely on the defense of provocation |
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Term
| The two modern cases that preclude LOC defense based on inciting are: |
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Definition
R v Dawes [2013]
R v Bowyer [2013] |
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Term
| The modern case that shows the evidential burden is on the D to successfully raise LOC is: |
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Definition
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Term
| There is a potential contradiction between s. 55(6) (the exclusion of sexual infidelity) and: |
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Definition
| s. 55(4) loss of control arising from being seriously wronged |
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Term
| How might a lawyer try to circumvent s. 55(6) (the exclusion of sexual infidelity) |
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Definition
| by claiming that it was not the infidelity itself that led to the loss of control, but instead it arose from feelings of rejection, humiliation, or panic regarding the potential breakdown of the family unit |
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Term
| Though excluded, • Sexual infidelity can potentially be used as a trigger if it is taken into account in conjunction with other triggers. Name the three cases where this is shown: |
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Definition
R v Clinton (R v C) (2012),
R v Parker [2012],
R v Evans [2012]. |
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Term
| Name three cumulative provocation cases which would have been decided differently with the new law: |
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Definition
R v Ahluwalia [1992]
R v Thornton [1992]
R v Ibrams and Gregory [1982] |
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Term
| Name a case which would have been decided differently with the new law of LOC, due to exclusion of sexual infidelity: |
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Definition
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Term
| Name a case which would have been decided differently with the new law of LOC, due to exclusion of inciting: |
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Definition
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Term
| Name a case which benefitted from provocation, but which would not qualify for LOC: |
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Definition
R v Doughty [1986]
• Killed 17 day old son because of crying. Successfully pleaded provocation |
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