loss of self-control/provocation essay Q Flashcards
(43 cards)
which section of which act has abolished provocation?
S.3 HA replaced by LOSC in the C&JA
what was the rationale of provocation?
that those who kill in hot blood do not deserve to be labelled murderer
What was the historic crime of provocation
allowed to defend ones honour- this was the justification
what did Hayward argue the use of provocation as a defence was
a defence for human frailty- therefore an excuse rather than a justification
Why did Wells say that both the view of excuse/ justification are problematic
it sends an unappealing message condoning anger overs self-restraint
Why is there a need for the partial defence
due to the life sentence attached to murder
What was the first problem of provocation (Doughty)
the slightest incidents were enough for the defence to be left to the jury, this was a structural failing of S.3 HA- Doughty- suffocated child due to their crying
What happened in Doughty
The judge was wrong to say that the crying did not fall within the definition of a provocative act under the old defence of provocation, it was a defence for the jury to decide. As the defendant neither feared immediate violence nor had a justified sense of being seriously wronged, it is highly likely that a judge could not allow today’s modern equivalent of provocation: loss of self-control, to be raised as a defence. If it was allowed, the jury would be entitled to find the act unreasonable.
What was the second problem with the old defence of provocation?
It was rooted in ‘sudden’ loss of self-control, and not readily acceptable to ‘slow-burn’ cases where e.g. an abused partner of child reacted to cumulative provocation by killing the abuser.
Case demonstrating rooted in sudden loss of control
The appellant poured petrol and caustic soda on to her sleeping husband and then set fire to him. He died six days later from his injuries. The couple had an arranged marriage and the husband had been violent and abusive throughout the marriage.
The definition in R v Duffy [1949] 1 All ER 932 as “sudden and temporary loss of control” is still good law as it is a readily understandable phrase. However, in cases of abused wives, the harmful act is often a result of a “slowburn” reaction, rather than immediate loss of self-control. The longer the delayed reaction of provocation and the stronger the evidence of deliberation, the less likely it becomes for the defence to succeed.
What is the last problem with provocation?
The ‘reasonable man’ acquired a dubious set of precedents allowing him to be invested with the very characteristics (eg mental abnormality) that made D ‘unreasonable’.
Case demonstrating the reasonable man acquired a dubious set of precedents
Smith (Morgan), The appellant, an alcoholic suffering from a depressive illness, stabbed his drinking partner after a row over some stolen tools. The House of Lords preferred the dissenting opinion in Luc Thuet Thuan holding that mental characteristics can be taken into account in assessing both the gravity of the provocation and the reaction of the defendant in relation to a reasonable man. The appeal was therefore dismissed.
What does S 54(6) state
the judge decides if there is sufficient evidence to leave the defence to the jury unlike under S 3 HA, were the defence would be presented if there was evidence that D was provoked. Therefore, the judge may withdraw the defence if no reasonable jury could accept the defence on the evidence given
Why is there a reluctance by judge’s to withdraw the defence
as it may be appealed on those grounds
Cases where there was an appeal due to the fact the judge failed to leave the defence to the jury
Barnsedale- Queane and Jewell
What is the issue where the judge leaves the defence to the jury despite the fact it would be his prerogative to withdraw it
acknowledges a willingness to have the defence accepted and this will be communicated to the jury
Why does the judge have a troublesome task in deciding whether or not to leave the defence to the jury
the judge must consider the quality of all the evidence, he is not obliged to instruct but must be aware that the jury may take a different view to him on the evidence given
What did Gurnipar say about the difficulty of the task of judges in deciding whether or not to leave the defence to the jury
provocation requires some evidence while LOSC requires sufficient evidence as to whether control was lost; if there was a qualifying trigger; and whether the normal person…., therefore, this is a higher test, so the defence is less likely to be left to a jury under the current defence
Where was the exclusionary model discussed
Clough: Honour killings, partial defences and exclusionary conduct model
What did Clough say the exclusionary conduct model is
certain things are excluded from the defence e.g. S56(6)(c) the court must disregard a thing said or a thing done that constitutes sexual infidelity
Why does Clough argue the exclusionary model is problematic
not necessary given the other safeguards which are in place e.g. the judge’s prerogative to withdraw the defence, or revenge killings are excluded
Where have these other safeguards been used successfully
in other categories considered as repugnant such as honour killings,
What does Withery argue about the exclusionary model
it gives the message that sexual infidelity is more morally repugnant than honour killings.
However, is sexual infertility truly excluded?
Clinton- while sexual infedilty alone cannot be relied up as a trigger, where it forms part of the context it must considered to allow for a just evaluation, in such circumstances the prohibitions does not operate to exclude it
