Loss of Control

Homicide – Voluntary Manslaughter

Loss of Control

Homicide – Voluntary Manslaughter Loss of Control – s54 Coroners and Justice Act 2009

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Homicide – Voluntary Manslaughter

Loss of Control

Issues with the old law (C issue) • Sudden and temporary loss of control • Role of the jury • Meaning of the reasonable man • Range of behaviour that could be provoking

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Homicide – Voluntary Manslaughter

Loss of Control

New Law • Provocation existed at common law before the law in this area was modified bys.3 Homicide Act 1957 (now ceases to have effect – s56 (2a) CJA 2009) • This area has now been replaced by s54 and 55 of the Coroners & Justice Act 2009.

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Homicide – Voluntary Manslaughter

Loss of Control

The New Law • Before you continue – Print, then read and précis ‘Loss of Control’ by Carol Withey: http://www.criminallawandjustice.co.uk/index.p hp?/Analysis/loss-of-control.html ‘Loss of Control’ is now under s54 of the Criminal Justice Act 2009. © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

New Partial Defence - Loss of Control - s54(1) … (a) D’s act in killing resulted from loss of self-control – i.e. Did D lose control? (old law required sudden loss of control – watch Ahluwalia film to see how under the old law d would fall at the first hurdle! (b) loss of control had a qualifying trigger (c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint, in the circumstances of D, would have reacted in the same/similar way. • Use each of the above as one third of your para 5! © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Evidence of Loss of Control • The judge must decide if there is enough evidence and the Jury must assume that the defence is satisfied unless the Crown proves beyond all reasonable doubt otherwise. (note impact of R vDoughty – crying baby) • No longer a requirement that loss was sudden

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Homicide – Voluntary Manslaughter

Loss of Control

Role of the judge in loss of control pleas • Look at these previous cases… – Do you think they would meet the new threshold? – Should the provocation have gone to the jury? R v Doughty

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R v Betambeau

R v Baillie

R v Pearson

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Homicide – Voluntary Manslaughter

Loss of Control

Loss of Self Control (2) For the purposes of subsection (1)(a) it does not matter whether or not the loss of control was sudden: Issues with this section: • The longer the gap the more likely the judge will withdraw it

R v Duffy 1949 ‘Sudden and temporary loss of control’

•Allows for a ‘cooling off period’ per Ahluwalia. •Law Commission did not want to keep these words

R v Cocker 1989 ‘Still must be a loss of control’

•Allows a whole category of provoking actions or words to be taken into account. © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Loss of Self Control Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. 1. Why might these words cause problems? 2. How might this have affected these older cases? R v Mohammed

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R v Ibrams & Gregory

R v Baillie

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Homicide – Voluntary Manslaughter

Loss of Control

Qualifying trigger • NOTE – Revenge (where have we seen this before?) does not apply (s54.4) and neither does sexual infidelity (Mohammed) (s55.6b) • 2 accepted QT’s: • 1. Fear of serious violence from V against D • 2. Thing or things ‘done or said’ (or both) – restricted to – (a) Of an extremely grave character – (b) Caused D to have a justifiable sense of being seriously wronged.

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Homicide – Voluntary Manslaughter

Loss of Control

Applicability of case law • Old cases (pre 2009) no longer binding law – but they are useful for comparison purposes… – Doughty (1986) – crying baby – Davies (1975) – D provoked by wife’s lover into shooting his wife – Pearson (1992) – D provoked by father’s abusive treatment of D’s brother into killing father with sledgehammer © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Self induced actions • To stop the possibility of a later appeal, D should usually be given the benefit of the doubt • This may include cases where D himself has started the trouble: – Johnson (1989) – But not if done so as to provide an excuse to use violence s55(6a)

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Homicide – Voluntary Manslaughter

Loss of Control

Loss of self-control • Revenge – why is the notion of revenge inconsistent with the defence of provocation/loss of control? • Note s54(4) – requires that the defendant did not act in a ‘considered desire for revenge’

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Homicide – Voluntary Manslaughter

Loss of Control

Cooling off period • D had/may still have difficulty in successfully pleading provocation if they have waited some time before acting. – Duffy (1949) – Thornton (1992) – Ahluwalia (1992)

• Do these cases still apply in the light of reform?

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Homicide – Voluntary Manslaughter

Loss of Control

Cooling off period • Despite apparent unfairness, the courts in domestic violence cases had consistently upheld the Duffy test which required a ‘sudden and temporary loss of self-control’.

• Sudden has now been removed. Would the case of Baillie (1995) be applicable?

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Homicide – Voluntary Manslaughter

Loss of Control

Qualifying trigger s.55 Who can be threatened?

What about other types of abuse?

Who can issue the provocation? First Trigger D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person Serious violence

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Judged subjectively

So D can even plead where: •Uses excessive force •Makes a mistake 16

Homicide – Voluntary Manslaughter

Loss of Control

Qualifying trigger s.55 Extremely grave character

Second Trigger This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which – (a) Constituted circumstances of an extremely grave character, AND (b) Caused D to have a a justifiable sense of being seriously wronged. Justifiable sense of being seriously wronged © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Other limitations on the qualifying trigger If D incites the violence from V, as an excuse, he cannot use it.

R v Johnson 1989

Sexually infidelity isn’t accepted as an excuse

Could D use loss of control as a defence in these situations?

D picks up the phone to hear his wife conducting a phone sex conversation with her lover. He put down the phone and strangles her. D and V are arguing. V has been abusive to to V and punches her. He also says that she is useless and that he has been having an affair with her sister for the last year. D stabs him killing him. D comes home to find her husband sexually abusing their young child. She stabs him to death.

Are there any other situations which should have been included? © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Objective test – standard of self-control • S54(1)(c) – would a person of D’s sex and age have acted in a similar way? The jury must be satisfied that a “person of D’s sex and age, with a normal degree of tolerance and self-restraint, and in the circumstances of D, would have reacted in the same/similar way.” AG v Holley

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Homicide – Voluntary Manslaughter

Loss of Control

The objective test Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control?

AND

Was it enough that D in those circumstances lost their control?

• Why include age? • What about gender?

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Homicide – Voluntary Manslaughter

Loss of Control

How is this different to earlier tests? Case law progression Stage one: Can you match the case – to the legal principle– to the description? Stage two: Can you put them in order and state how the test has developed? © The Law Bank

Its not! 21

Homicide – Voluntary Manslaughter

Loss of Control

Answers! Bedder v DPP

1954

‘Ha ha, What are you going to do with that? Oh my is that a knife in your pocket or are you just pleased to see

No characteristics are relevant to D’s selfcontrol

me?’

DPP v Camplin

1978

A good pan will get you out of most problems

Age and sex are the only relevant characteristics relevant for self-control

“I don’t care how much money you give me I am still a better lover than your new bloke!”

Mental characteristics should not be taken into account when assessing the reasonable man

Luc Thiet Thuan

1979

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Homicide – Voluntary Manslaughter

Loss of Control

Answers! R v (Smith) Morgan I am a real tool for reacting like that. Hic. Sob.

2000

AG Jersey v Holley

2005

Any characteristics which affects D’s selfcontrol may be included

‘I know we are no longer together but you cannot expect me to like your new lover especially when I am so drunk and armed with an axe!’

Age and sex are the only relevant characteristics relevant for self-control

How many women can have affairs in one appeal hearing?

Age and sex are the only relevant characteristics relevant for self-control

R v James & Karimi

2006

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Homicide – Voluntary Manslaughter

Loss of Control

Higher order thinking 1. 2.

The old law is still good law Read the case report for Camplin and answer the following questions: 1. 2. 3. 4. 5. 6. 7.

What were the facts of the case? What was the provocations alleged? What characteristics did D want to include in the reasonable man test? What does Diplock say the RM should include? What issue of public policy limited the defence? What are your thoughts about this? Should these be temporary or permanent characteristics?

Extension – can you extend your commentary by referring to at least one other controversial case?

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Homicide – Voluntary Manslaughter

Loss of Control

Objective test – standard of self-control • The new test is similar to DPP v Camplin (1978) • Privy Council in A-G for Jersey v Holley [2005] • Essentially the age and sex of D can be attributed.

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Homicide – Voluntary Manslaughter

Loss of Control

The objective test Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control?

• Why include age? • What about gender?

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AND

Was it enough that D in those circumstances lost their control?

• What word has changed from the old law? Circumstances …was characteristics. • Why might that be more flexible than the old approach? 26

Homicide – Voluntary Manslaughter

Loss of Control

Which characteristics? • Is this the same as circumstances in s.54? • In a more liberal approach, the courts have allowed mental characteristics to be attributed to the reasonable man: – Ahluwalia (1992) – Dryden (1995) – Humphreys (1995)

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Homicide – Voluntary Manslaughter

Loss of Control

Temporary and self-induced characteristics • Generally, a transient state of mind, e.g. intoxication will not amount to a ‘characteristic’. However, the H of L has indicated that the jury should look at the ‘entire factual situation’ when considering the gravity of the provocation: – Morhall 1996.

• See also the cases of: – Gregson (2006) – Hill (2008) © The Law Bank

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Homicide – Voluntary Manslaughter

Loss of Control

Apply the law • Answer the question that is on your desk using the knowledge you now have. • Remember IDEA • Use this sequence for the E and A parts: © The Law Bank

Murder: Actus Reus Murder: Mens Rea Loss of control Qualifying trigger? Enough to provoke the person with the age and sex of D in the circumstances Causation?

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Homicide – Voluntary Manslaughter

Loss of Control

Objectives • Define the elements of the partial defence of Loss of Control • Explain in what circumstances the partial defence of Loss of Control can be used by a defendant • Describe the application of the partial defence by reference to case law and problem scenarios © The Law Bank

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