Loss of control

Question 1

Requirements of the defence

Answer 1

Section 54 of the Coroners and Justice Act
D lost self control
LOSC was a result of a qualifying trigger
A person of D’s sex and age, with a normal degree of tolerance and self-restrain and in D’s circumstances, might have reacted in the same or in a similar way

Question 2

D lost self control

Answer 2

Subjective
R v Jewell: “loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning”
R v Dawes: D was acting in an angry but controlled manner- no LOSC; but recognised that a reaction may be delayed
R v Islam: no need for a frenzied attack

Question 3

LOSC was a result of a Qualifying trigger

Answer 3

QTs found in section 55
R v Goodwin: D must show they were provoked by the QT
R v Dawes: ending of a relationship not itself amount to a justified sense of being wronged
MoJ: example of a victim of rape who killed her attacker as being the kind of extreme case where the defence may be available
R v Rejmanski: D’s mental condition can be taken into account when deciding whether an act/insult was a serious wrong
R v Clinton, Parker, and Evans: confirmed sexual infidelity is not a QT but can provide context and is “a permissible feature of the loss of control defence”

Question 4

Would a person of D’s age and sex with normal tolerance and self-restraint have acted as D did?

Answer 4

R v Asmelash: if D is intoxicated must still show level of self-control of a sober person
R v Hill: nature of the trigger must be seen in light of D’s history; accepted that a person who had suffered abuse as a child might find a sexual assault more provoking than another D
R v Clinton: sexual infidelity can amount to part of the circumstances in determining how a reasonable person would respond
R v Rejmanski: personality disorder can be considered in relation to how a reasonable person would respond, but not in a way which impacts on the normal powers of tolerance or self-restraint

Question 5

Justification

Answer 5

Mousourakis: provoked Ds are far less to blame, having killed in the heat of the moment, than those who kill in cold blood
Smith and Wilson: Ds still had some control over their actions, so they are not granted a complete excuse and are still guilty of manslaughter

Question 6

Theory on the need of a QT

Answer 6

J.C. Smith: unsatisfactory; as long as D lost self-control, it shouldn’t matter what caused it

Question 7

Gendered nature of the defence

Answer 7

Clough: women who kill their abusers have not readily found a defence in the criminal law
Kaganas: women who kill their abusers are responding rationally, and not acting while suffering from a mental abnormality- the law should permit such victims to rely on self-defence

Question 8

Case for abolition of the defence

Answer 8

Horder: killing in anger is no more worthy of a defence than killing while overcome by greed or envy
- 52.5% of women who kill their male partners are able to rely on the defence, while only 30% of men who kill their female partners are able to; suggests the defence operates pro-women
- Sullivan: but what could that 52.5% rely on if we abolish the defence?
Wells: defence invites D to defame the deceased and encourages the jury to rely on racial and sexual stereotypes
- E.g. in the Australian case of Masciantonio where D sought to rely on the fact that he was Italian and was more hot-tempered