Loss of Control

Question 1

Defence and act

Answer 1

D could try and raise the special and partial defence to murder of Loss of Control set out in s.54 & 55 Coroners & Justice Act 2009 replacing s.3 Homicide Act 1957

Question 2

If successful?

Answer 2

If successful the charge of murder will be reduced to voluntary manslaughter and the judge will have discretion in sentencing (maximum life). The judge will decide if there is “sufficient evidence” of LoC to allow the jury to consider the defence

Question 3

What type of test?

Answer 3

First, the jury must be satisfied that at the time of the killing D lost his self-control, this is a subjective test. It doesn’t have to be sudden, but it does have to be lost (Clinton).

Question 4

Delay?

Answer 4

A delay will not necessarily defeat the defence as “different individuals will respond in different ways” and cumulative factors, a history of events can be taken into consideration when deciding if the D lost control (Dawes; Ahluwahlia; Humphreys)

Question 5

Deliberation?

Answer 5

The greater the degree of deliberation, the less likely the D lost self-control (Clinton). If the D was acting out of a considered desire for revenge the defence will fail (Ibrams & Gregory; Jewell) + Apply

Question 6

The Loc must arise from one of two qualifying triggers or both (s.55) this is:

Answer 6

1) A fear of serious violence from V towards D or another identifiable person (Pearson; Ward).
This can be a perceived threat, D can be mistaken as long as it is an honest mistake (Gladstone Williams). It cannot be a drunken mistake (O’Grady; Hatton)

2) A thing said of done or both which constitutes circumstances of an extremely grave character and which caused D to have a justifiable sense of being seriously wronged (Camplin)

Question 7

Tolerance?

Answer 7

Finally, whichever trigger the D relies on, the jury must be satisfied that a person of the same age and sex with a normal degree of tolerance and self restraint and in circumstances of D might have acted in the same or similar way (s.54(1)(c). This is an objective test.

Question 8

Circumstances?

Answer 8

Any circumstances of D can be considered other than those which impact on his ability for tolerance or self restraint, which probably excludes personality disorders, intoxication (Asmelash), anger and aggression (Mohamed) etc. However, ‘Circumstances’ of D is broad enough to include sexual infidelity (Clinton) even though this alone can’t be a qualifying trigger