Circumstances of the Defendant & Sufficient Evidence+reform of the law

Question 1

What happened in the case of Gregson?

Answer 1

V laughed at D for being unemployed, D suffered from depression and epilepsy. Evidence proved that D was more sensitive to taunts about his unemployment. D lost control and killed V. D was given the defence of provocation. His personal circumstances could not be considered in relation to the standard of self control but could be in relation tot the gravity of provocation.

Question 2

V laughed at D for being unemployed, D suffered from depression and epilepsy. Evidence proved that D was more sensitive to taunts about his unemployment. D lost control and killed V. D was given the defence of provocation. His personal circumstances could not be considered in relation to the standard of self control but could be in relation tot the gravity of provocation.
What case is this?

Answer 2

Gregson

Question 3

What would be the likely result if the case of Gregson happened under the 2009 Act?

Answer 3

it seems likely that unemployment would be a circumstance for the purposes of the defence of loss of control as under the 2009 Act, the depression and epilepsy would be relevant in deciding whether a person of normal self restraint might have reacted in the same or similar way

Question 4

What happened in the case of Hill?

Answer 4

D has been sexually abused as a child. D lost control and killed V who tried to sexually assault him. D was able to use the defence of provocation.

Question 5

D has been sexually abused as a child. D lost control and killed V who tried to sexually assault him. D was able to use the defence of provocation.
What case is this?

Answer 5

Hill

Question 6

in the circumstances of Hill, what would the ‘normal’ person have to be considered as having?

Answer 6

as having a history of sexual abuse in deciding whether they would ahem reacted in the same or similar way. this would apply under loss of control

Question 7

explain the personal circumstances

Answer 7

under the ‘normal person’ their circumstances are used to see what a normal person would do, but are not looked at subjectively to the defendants own self restraint

Question 8

What is not considered to be apart of Ds circumstances ?

Answer 8

voluntary intoxication

Question 9

In what case did the COA refuse to allow D’s voluntary intoxication to be considered?

Answer 9

Asmelash 2013

Question 10

In the case of Asmelash, what did the COA refuse to be considered?

Answer 10

Ds voluntary intoxication

Question 11

Why did the COA in Asmelash refuse to allow Ds voluntary intoxication to be considered?

Answer 11

as Parliament would have otherwise had clearly stated in 2009

Question 12

While voluntary intoxication is not allowed, how may a defendant still be allowed the defence of loss of control?

Answer 12

if a normal person with the normal levels of tolerance and self restraint may still have behaved in the same way as the defendant when confronted by the relevant qualifying triggers

Question 13

When could someone with drugs or intoxicated be allowed the defence of loss of control?

Answer 13

if they were taunted about their condition, then the drug or alcohol problem would form part of the circumstances for consideration

Question 14

When would the defence of loss of control fail when the jury consider what a normal person would do?

Answer 14

if they think they the normal person might have lost control but would not have reacted in the same way

Question 15

What did the jury decide in Van Dongen under provocation?

Answer 15

that the reasonable man would have lost self control but would not have reacted in the same way as D who repeatedly kicked V while V was lying on the pavement. Defence failed.

Question 16

What happened in the case of Van Dongen?

Answer 16

D who repeatedly kicked V while V was lying on the pavement. Defence failed as it was held that the easonable man would have lost self control but would not have reacted in the same way as D

Question 17

Under the old law of provocation, the judge was bound to leave the defence to the jury if there was any evidence that the defendant was provoked to lose his self control however improbable the defence may have appeared. The law commission upon considering reform felt that this was what? (negative)

Answer 17

hat it did not ‘serve the interests of justice’ because it could lead to an absurd claim for the defence being allowed.

Question 18

The Coroners and Justice Act 2009 did follow the recommendation of the Law Commission to give the trial judge the task of deciding what?

Answer 18

if there was sufficient evidence to leave the defence of loss of control to the jury

Question 19

In the 3 cases Dawes, Bowyer and Hatter 2013, what did the trial judge refuse to leave to the defence of loss of control to ?

Answer 19

the jury

Question 20

Why did the COA dismiss appeals in Dawes, Bowyer and Hatter in 2013 after the trial judge had refused to leave the defence of loss of control to jury?

Answer 20

as they found that the judge was right to rule that there was no sufficient evidence to leave the defence to the jury

Question 21

Why wast the reform of the Coroners and Justice Act 2009 made?

Answer 21

because there had been many problems with the law on provocation

Question 22

What Act had set up some of the tests for provocation?

Answer 22

1957 Homicide Act

Question 23

The 1957 Homicide Act did not give a complete definition for provocation, why was this a problem?

Answer 23

as the law in previous cases had t be considered as well as the test in the Homicide Act

Question 24

What was a main problem in provocation?

Answer 24

the wording of the test in the Homicide Act as this had stated that the jury had to decide whether D was provoked to lose self control and if this was enough to make the reasonable many do as D did

Question 25

Why did the term reasonable man under provocation initially create problems?

Answer 25

as it was held that this meant a reasonable adult which was hard to apply in cases of teenagers such as in Camplin

Question 26

What was held in the case of Camplin?

Answer 26

D was 15 and it was held that the age and sex of D could be considered

Question 27

What is now considered in the loss of control offence under the 2009 Act?

Answer 27

age and sex

Question 28

It was held in Camplin that other characteristics of D could be considered in regard to the gravity of provocation to him. In the defence of loss of control, what has this now been changed to?

Answer 28

“circumstances”

Question 29

What is positive of the word “circumstances” in the loss of control defence under 2009 Act?

Answer 29

it is wider than characteristics, though the courts interpretation of characteristics has been relatively generous

Question 30

What case demonstrates that the courts have been generous regarding the interpretation of “Characteristics” under provocation?

Answer 30

Hill, where the court allowed Ds history of sexual abuse to be considered in the case

Question 31

In the case of Morhall what did the HOL allow to be considered when deciding the gravity of the provocation to him?

Answer 31

the fact that D was addicted to glue sniffing

Question 32

How is the defence of loss of control wider in some ways to provocation? (2)

Answer 32

the loss of control does not have to be sudden

fear of serious violence is an additional matter which can be considered

Question 33

How is the defence of loss of control narrower in some ways to provocation? (2)

Answer 33

• sexual infidelity is no longer allowed as a qualifying trigger
• things said or done must be of a grave character

Question 34

What case would not have allowed D the defence of loss of control as the things said or done had to be of a grave nature?

Answer 34

Doughty where it was held that the continual crying of 19 day old baby could be provocation

Question 35

Why did the Law Commission propose to remove the loss of self control criteria completely?

Answer 35

as it is recognised that women in abusive relationships may kill from a combination of fear, frustration and a sense of desperation

Question 36

What was the only concession the Government made when creating the 2009 Act?

Answer 36

they agreed that loss of control need not be sudden

Question 37

Why is it a problem that sexual infidelity is no longer allowed as a qualifying trigger?

Answer 37

as the defence of provocation was largely created for such situations as if someone unexpectedly finds their partner with someone else, they are very likely to lose control

Question 38

Why was the fear of serious violence trigger added?

Answer 38

largely as a result from the lack of defence in the cases of Clegg and Martin

Question 39

What are the 3 main points of the defence?

Answer 39

• D must have lost control
• Must be a qualifying trigger
• a person of the same age and sex would have reacted in the same circumstances

Question 40

What are the 2 qualifying triggers?

Answer 40

• fear of serious violence
• a thing said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged.

Question 41

When can the circumstances of D be taken into consideration in deciding whether a normal person might have reacted in the same way?

Answer 41

when they do not have a bearing on a capacity for self control