Loss of self control

Question 1

What is LOSC

Answer 1

where D has AR and MR for murder, special circumstances reduce the offence from murder

Question 2

Which S C&JA provides that a partial defence can be reduced from murder to manslaughter

Answer 2

s 54(7)

Question 3

Who decides if there is sufficient evidence

Answer 3

S 54(6), this gives the judge greater control than under S. 3 HA, where the judge could leave the defence to the jury if there was evidence that D was provoked

Question 4

Who is the legal burden on?

Answer 4

the prosecution to disprove the defence, but first there is an evidential burden to be satisfied which raises the presumption of the defence s. 54(5)

Question 5

What is S. 54(1)(a)

Answer 5

D must be shown to have lost control

Question 6

What does S 54(2) say

Answer 6

The loss of control need not be sudden S 54(2), this accommodates for the slow burn- battered partner situation

Question 7

How does Smith and Hogan define a Loss of control

Answer 7

the loss of the ability to act in accordance with considered judgement of the loss of normal powers of reasoning

Question 8

What happened in Jewell

Answer 8

No LOSC - planned to kill work college

Question 9

What happened in Gurnipar

Answer 9

no loss of self control

Question 10

What is S 54(1)(b)

Answer 10

there must be a qualifying trigger

Question 11

What is S 55(3)

Answer 11

A fear of serious violence- added by Law Com so no worse off than those who act in anger

Question 12

Does LOSC allow for a reaction which is not proportionate?

Answer 12

Yes

Question 13

Slow burn/cumulative situation case

Answer 13

Aluwahilia

Question 14

What is S 55(4)

Answer 14

Things said or a thing done which constitute circumstances of extremely grave character that cause D a justifiable sense of being seriously wronged

Question 15

Which cases have interpreted this

Answer 15

Clinton and Dawes have interpreted to be an objective test: it must be reasonable for D to feel how he did

Question 16

What does the objective test do

Answer 16

creates a high bar: MacDonald (found wife growing Cannabis)

Question 17

What happened in MacDonald

Answer 17

D and his wife were in the middle or divorce proceedings when she discovered that he had been growing Cannabis, and used this against him to get him to sign to her terms of the divorce. She treateneded if he did not she would not allow him to see the children and render his mother homeless. The judge found those cumulative circumstances wree not capable of being grave enough to give rise to a justifiable sense of being seriously wronged. The threats were conditional, they could only be implemented in the future through court proceedings.

Question 18

What does extremely grave and seriously wrong filter out

Answer 18

absurd trivia and normal irritations: Dawes, Bowyer and Meanza

Question 19

What happened in Meanza

Answer 19

D suffered mental illness and personality disorder. He was living in secure accommodation under a court order. He killed a career when she asked her to turn down his television. He had a number of irritations, but due to legal orders that lead to his confinement. Judge was right to rule out loss of self control as a defence. DR was the only defence available to him based on mental health, but the jury rejected this and he was convicted or murder.

Question 20

Why is the objective test criticised

Answer 20

In light of the defence being a concession to human fragility is this too severe? There is also a risk that a judge will withdraw a defence before a jury can consider it.

Question 21

What is S 55(5)

Answer 21

A combination of the triggers

Question 22

What is S 54(1)(c)

Answer 22

whether 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.’

Question 23

what does circumstances mean

Answer 23

Circumstances of D means ‘all of D’s circumstances other than those whose relevance to D’s conduct is that they bear in D;s general capacity for tolerance or self-restrain- s.54(3).

Question 24

Which case shows relevance of age

Answer 24

Camplin, 15 year old boy sexually assaulted by V and taunted him. D hit the victim with a pan killing him.

Question 25

Why is age taken into consideration?

Answer 25

The test to be applied was a reasonable person of the age and sex of the accused, bevcuase law should not expect ‘old heads of young shoulders’ extra allowance made for sex but ‘more doubtfully’ Hoffman in AG Jersey v Holley

Question 26

What did Smith (Morgan) hold about characteristics?

Answer 26

Characteristics that serve only to explain/excuse D’s inability to exercise normal self-control are excluded, this overturned the common law approach in Smith (Morgan).

Question 27

Will intoxication be relevant circumstance?

Answer 27

Asmelash, the trial judge right to direct that the normal person is unaffected by alcohol, so D who is under the influence of drink or drugs will succeed unless a sober person might have reacted how he did. Could drunkenness ever be a characteristic or circumstance? The CA commented obiter that ‘different considerations would arise if a D with a severe problem with alcohol or drugs was mercilessly taunted about the condition; to the extent that it constituted a qualifying trigger, the alchohol or drug problem would then form part of the circumstances for cosnideration’

Question 28

What is S 54(4)

Answer 28

excludes a considered desire from revenge

Question 29

Case for desire for revenge

Answer 29

Evans, killed his wife of 41 years when she threatened to leave him. If he killed by way of defence he would not be able to rely on the defence. However, all provoked killings are likely to include an element of revent, much therefore turns on consideration. The more D thinks about his conduct, the more likely it is to fall within a revenge kllling.

Question 30

the greater the level of deliberation the

Answer 30

more likely it is to be revenge

Question 31

What is a self induced trigger

Answer 31

D will not be able to take advantage of the specified triggers if his fear/sense of being wronged resulted from D’s own incitement ‘for the purpose of providing an excuse to use violence’ S.55(6)(a) and (b).

Question 32

What is S 55(6)(c)

Answer 32

S55(6)(c the fact that a thing done or said constituted sexual infidelity is to be disregarded.

Question 33

Why has sexual infidelity been added?

Answer 33

This has been added by the Government to make clear that a jealous partner who reacts violently to a confession/discovery of infidelity cannot thereby establish the defence.

Question 34

Does it matter if allegations are true or false?

Answer 34

Clinton decided that admissions/reports of infidelity whether true or false constitute infidelity.

Question 35

When will sexual infedilty be taken into consideration?

Answer 35

to achieve fairness, S 56(6(c) must be interpreted as sexual infedilty alone cannot be a stand alone trigger, but if it provides context in other circumstances and is integral and forms an essential part of the context in which to make a just evaluation the prohibition does not seek to exclude it

Question 36

Quote from Clinton regarding fidelity

Answer 36

it is not practical to compartmentalise and disregard any evidence that concerns infediltiy the purpose is to prevent misuse as to the rigger as it was thought to have been misused in provocation.