Notesale: Turn your study into money

Document Preview

Extracts from the notes are below, to see the PDF you'll receive please use the links above

---

Defence of ‘loss of control’ Assignment

LLB CRIMINAL LAW COURSEWORK
The Coroners and Justice Act 2009 created the defence of ‘loss of control’
...
The court stated that the defence is self-contained and its common law heritage
relating to the defence of provocation is now irrelevant
...

The loss of control (LOC) defence was introduced by sections 54 and 55 of the Coroners and Justice Act 2009
(CJA 2009), in response to concerns in relation to the defence of provocation
...
‘The defence was also criticised for
being gender bias, in that it was too favourable to those who killed as a result of losing their temper (generally
male defendants) but did not provide a response to those who killed out of a fear of serious violence (often
women in domestic violence)
...

The LOC defence is one of the most controversial defences in English law and has received an enormous
amount of academic attention
...

As with the old law, LOC is a partial defence, which applies only to the crime of murder
...
As illustrated in R v
Acott5, ‘the burden of proof for the defence of LOC under the CJA 2009 reflects the previous position in respect
of the defence of provocation’,6 so once the issue is raised, the legal burden rests with the prosecution who must
prove beyond reasonable doubt that the elements of LOC are not satisfied
...
Available from http://www
...
co
...
php [Accessed 22/10/2012]
BPP Constitutional law lecture (2012), Homicide 1
...
bpp
...

4
E-law Resources (2012), The Defence of Loss of Control (n 1)
...

6
Nicola Monaghan, Criminal Law: Directions (2nd edn, Oxford University Press 2012) 101
...

2
3

1

Defence of ‘loss of control’ Assignment

reasonable man do as the defendant did (objective question)?’8 The LOC defence appears to retain the basic
structure of the old law of provocation, in that under section 54 CJA 2009 a defendant may plead this defence
where s/he was provoked by a qualifying trigger into losing his self-control, and a person of the defendant’s sex
and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might
have reacted in the same or in similar way as the defendant did
...
Under the old law, it had to be shown that the loss of
self-control was ‘sudden and temporary’
...
The requirement of a sudden and temporary loss of
control was criticised as favouring men, who may be more likely to react spontaneously to provoking words or
conduct, and also for disadvantaging women, who may be more likely to react to this ‘slow burn’ principle,
such as with victims of domestic violence
...
1)11, unless at the time
that the defendant killed, s/he suddenly and temporarily lost control
...

However, the CJA 2009 in direct contrast, states that under section 54(2), there is no requirement that the LOC
be sudden
...
‘Although the aim is to accommodate women suffering from the battered woman syndrome,
this is not a specific requirement, therefore the circumstances under which this defence may apply are likely to
be wider than under the older defence of provocation
...
’16 ‘Evidence of planning an attack or a significant delay between
the provoking words/act and the killing, negated the spontaneity essential for the defence of provocation
...
This upholds the
principle seen in R v Ibrams and Gregory18
...


Also, the distinction between

8

BPP Constitutional law lecture (2012), Homicide 1 (n 2)
...

10
Monaghan, Criminal Law: Directions (n 6) 104
...

12
Monaghan, Criminal Law: Directions (n 6) 104
...

14
Monaghan, Criminal Law: Directions (n 6) 105
...
Available from http://www
...
com/blog/loss-of-control
...

17
Monaghan, Criminal Law: Directions (n 6) 103
...

19
Monaghan, Criminal Law: Directions (n 6) 104
...

Nevertheless, section 54(2) CJA 2009 ‘removes the confusion over whether a sudden LOC can be reconciled
with a delay between the provocation and the killing
...
’21
‘Under the old law, provocation was available if the defendant lost control as a result of something ‘said or
done’
...
The CJA 2009 has greatly narrowed the law
...

The first trigger, the need to fear serious violence, is a significant departure from the old law where almost
anything could amount to provocation and form the basis of that defence, as illustrated in R v Davies23
...
If this case were to come before the courts today, the
defendant would not be able to raise the defence of LOC under this trigger
...

‘One issue that greatly troubled the courts in the old law of provocation were cases where a victim of domestic
violence had killed their abusive spouse’26, such as in Ahluwalia
...
’27
‘The new law extends the remit of the defence to cover situations in which previously only a complete defence
of self-defence was available
...
However, such an argument may now be available

20

Legal Norms (2010), The New Partial Defence of Loss of Control (n 15)
...

Herring, Criminal Law: Text, Cases and Materials (n 3) 246
...

24
(1986) 83 Cr App R 31
...

26
Herring, Criminal Law: Text, Cases and Materials (n 3) 251
...

28
Monaghan, Criminal Law: Directions (n 6) 106
...

21
22

3

Defence of ‘loss of control’ Assignment

under the new law’30, but the defence of LOC is excluded where the defendant was the initial aggressor (section
55(6)(a)), whereas the same is not true of self-defence
...

The second qualifying trigger, a ‘justifiable sense of being seriously wronged’ must come from something said
or done, which leads to the feeling on the part of the defendant, amounting to ‘circumstances of an extremely
grave character’ (section 55(4)(a))
...
Therefore, one might conclude that this was a circumstance of extremely grave
character, causing her to feel justifiably wrong
...
‘Previously, whether things said or done were sufficient to amount to
provocation was left to the jury entirely and the judge would only try and explain the objective and subjective
test
...
This change is
based on the view that in a civilised society there can be no excuse for killing due to infidelity, therefore, in the
case of Davies this defence would no longer be available to the defendant
...
’35 In R v Clinton;
R v Parker; R v Evans36 the court considered the full extent of the prohibition against ‘sexual infidelity’ as a
qualifying trigger
...
’37 The term ‘sexual infidelity’
is narrow, so it would not cover comments about a partner’s sexual performance, but the courts will still need to
consider what counts as infidelity
...

It replaces the old law, were the jury was asked to consider whether a reasonable man, would have acted as the
defendant did under such provocation
...

E-law Resources (2012), The Defence of Loss of Control (n 1)
...

33
[1995] 4 All ER 1008
...

35
E-law Resources (2012), The Defence of Loss of Control (n 1)
...

37
Herring, Criminal Law: Text, Cases and Materials (n 3) 248
...
’38 The objective approach does not take into
account the defendant’s actual characteristics
...

The old law was subject to much conflicting interpretation in the courts
...
’43 ‘After Camplin, the age and sex of the defendant were the only ‘control’
characteristics that could be taken into account, whereas there was no limit on ‘gravity’ characteristics that
might be considered
...
’46 In R v Morhall47, the defendant’s drug addiction was held to be ‘gravity’
characteristic, so it could be considered by the jury in deciding the effect that the provocation would have on a
person with ordinary powers of control, who shares such characteristics of the defendant
...
However, had the victim taunted the defendant about his mental disability, then it
would have been a ‘gravity’ characteristic, a factor which the jury would consider
...
This was confirmed in R v Weller51,
whereby both the circumstances and characteristics of the defendant can be accounted
...

The old law attracted widespread criticism, as it was felt that the objective standard had been significantly
relaxed in deciding if the defendant’s conduct is excusable
...

Monaghan, Criminal Law: Directions (n 6) 109
...

41
[1954] 1 WLR 1119
...

43
Monaghan, Criminal Law: Directions (n 6) 109
...

45
[1995] All ER 987
...

47
[1996] AC 90
...

49
Monaghan, Criminal Law: Directions (n 6) 111
...

51
[2003] EWCA Crim 815
...

39

5

Defence of ‘loss of control’ Assignment

Privy Council wanted to resolve the issue of the objective element of the law relating to provocation and clarify
the present state of English law
...

This would apply to a case such as Doughty
...
‘The reference to tolerance
is designed to deal with cases where the defendant regards actions as particularly provocative because of his or
her intolerant belief’55
...
If Van Dongen56, was heard under the new law,
‘even if a jury were persuaded that a reasonable person would have lost control, they might not be persuaded
that the reasonable person would have attacked the victim in such a prolonged manner’57
...
‘This means that what might appear to
be a minor wrong, when seen in the light of the history of the event, is in fact a grave wrong
...
Such an approach was taken in R v
Thornton (No
...

‘Under the new law, the jury are required to consider how a person of the defendant’s age and sex, with a
normal degree of tolerance and self-restraint might have reacted
...
’61 ‘Section 54(1)(c)
CJA 2009 reflects the law preferred in Holley, a reversion to the position after Camplin, so that only age and
sex of the defendant can be taken into account in assessing the degree of tolerance and self-control to be
expected of the defendant
...

The new act has maintained some of the features from the old common law, such as the burden of proof and
that the defendant must have lost self-control
...

Herring, Criminal Law: Text, Cases and Materials (n 3) 249
...

56
[2005] Crim LR 971
...

58
Herring, Criminal Law: Text, Cases and Materials (n 3) 250
...

60
[1996] 2 ALL ER 1023
...

62
Monaghan, Criminal Law: Directions (n 6) 109
...

54

6

Defence of ‘loss of control’ Assignment

provocation and murder out of revenge
...
‘However, the way the act does so, by adding a completely new defence, only marginally
different from the defence of self defence, creates additional uncertainty
...
66

Furthermore, the case of Clinton, has stirred up issues in relation to sexual infidelity being a

permissible feature of the LOC defence, despite the CJA 2009 stating that it should be disregarded
...
The new defence appears to make clear that only age and sex can affect the degree of tolerance and
self-restraint expected
...
’67 The third element of the defence,
is thus perhaps more generous to defendants under CJA 2009’
...
69

64

Legal Norms (2010), The New Partial Defence of Loss of Control (n 15)
...

66
Withey C, ‘Loss of Control, Loss of Opportunity?’, (2011) Criminal Law Review 263
67
Herring, Criminal Law: Text, Cases and Materials (n 3) 303
...

69
Legal Norms (2010), The New Partial Defence of Loss of Control (n 15)
...
I have read and fully
understood the provisions relating to unfair practices (including plagiarism) as cited on the VLE
...

Norris A, ‘The Coroners and Justice Act 2009 – partial defences to murder’, (2010) Criminal Law
Review 275
Withey C, ‘Loss of Control, Loss of Opportunity?’, (2011) Criminal Law Review 263
Case Law:
Attorney General for Jersey v Holley [2005] UKPC 23
Bedder v DPP [1954] 1 WLR 1119
Luc Thiet Thuan v R [1997] AC 131
R v Ahluwalia [1992] 4 All ER 889
R v Camplin [1978] AC 705
R v Clinton; R v Parker; R v Evans [2012] EWCA Crim 2
R v Davies [1975] QB 691
R v Doughty (1986) 83 Cr App R 31
R v Dryden [1995] All ER 987
R v Humphreys [1995] 4 All ER 1008
R v Ibrams and Gregory (1982) 74 Cr App R 154
8

Defence of ‘loss of control’ Assignment

R v Johnson [1989] 1 WLR 740
R v Karimi and James [2006] EWCA Crim 14
R v Martin (Anthony) [2002] Crim LR 136
R v McCarthy [1954] 2QB 105
R v Mohammed [2005] EWCA Crim 1880
R v Morhall [1996] AC 90
R v Smith (Morgan James) [2001] 1 AC 146
R v Thornton (No
...
2) [1996] 2 ALL ER 1023
R v Weller [2003] EWCA Crim 815
Van Dongen [2005] Crim LR 971
Legislation:
Coroners and Justice Act 2009
Homicide Act 1957
Electronic Information/sources:
BPP Constitutional law lecture (2012), Homicide 1
...
bpp
...
Available from http://www
...
co
...
php [Accessed 22/10/2012]
Legal Norms (2010), The New Partial Defence of Loss of Control
...
legalnorms
...
php [Accessed 22/10/2012]
LexisNexis

9



---