Loss Of Control

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•Partial defence–Reducesmurder to manslaughter•Definition–Coronersand Justice Act, 2009, ss54 and 55

S 54 (1) Where a person (“D”) kills or is a party to the killing ofanother (“V”), Dis not to be convicted of murder if—(a) D's acts and omissions in doing or beinga party to the killing resulted from D's loss of self-control,(b) the loss of self-control had a qualifyingtrigger, and(c) a person of D's sex and age, with anormal 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.pt;vۼ

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(2) For the purposes of subsection (1)(a), itdoes not matter whether or not the loss of control was sudden.(3) In subsection (1)(c) the reference to “the circumstances of D” is areference to all of D's circumstances other than those whose only relevance toD's conduct is that they bear on D's general capacity for tolerance orself-restraint.(4) Subsection (1) does not apply if, indoing or being a party to the killing, D acted in a considered desire forrevenge.

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(5) On a charge of murder, if sufficientevidence is adduced to raise an issue with respect to the defence undersubsection (1), the jury must assume that the defence is satisfied unless theprosecution proves beyond reasonable doubt that it is not.(6) For the purposes of subsection (5),sufficient evidence is adduced to raise an issue with respect to the defence ifevidence is adduced on which, in the opinion of the trial judge, a jury,properly directed, could reasonably conclude that the defence might apply.(7) A person who, but for this section, wouldbe liable to be convicted of murder is liable instead to be convicted ofmanslaughter.

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•The requirements –Thereneeds to be a loss of control–Thereis a qualifying trigger for the loss of control–Aperson of the defendant's sex and age, with a normal degree of tolerance andself-restraint, might have reacted in the same or in a similar way to thedefendant•Loss of Control (Common Law)

Duffy[1949] 1 All ER 9324821} “…some act, or series of acts, done by the dead man to theaccused which would cause in any reasonable person, and actually causes in theaccused, a sudden and temporary loss of self control, rendering the accused sosubject to passion as to make him or her for the moment not master of his mind”, per Devlin, J as approved by Lord Goddard CJ.•

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•Loss of Control–Ahluwalia (1993) 96 Cr App R133–Clinton, Parker and Evans [2012] EWCA Crim 2

“10. The killing must have resulted from the loss of selfcontrol. The loss of control need not be sudden, but it must have been lost.That is essential. Before reaching the second ingredient, the qualifyingtrigger, there is a further hurdle, that the defendant must not have beenacting in a “considered”desire for revenge... In the broad context of the legislative structure, theredoes not appear to be very much room for any “considered”deliberation. In reality, the greater the level of deliberation, the lesslikely it will be that the killing followed a true loss of self control.” per Judge, LCJ dy>yvۥ

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•Loss of Control–Barnsdale-Quean[2014] EWCA Crim1418–Jewell [2014] EWCA Crim414 N

46. The factual backdrop is not helpful to the applicant. Hearmed himself with firearms (in the plural) and with what the Crown accuratelydescribed as a survival kit including a tent, spare clothing, passport, drivinglicence, cash, and other weapons and he did so some12 hours before he drove to Mr Prickett's home, armed with a loaded shotgun and a loaded home-madepistol, shot him without warning and made good his escape. This bore everyhallmark of a pre-planned, cold-blooded execution. His explanation that he wasin fear of serious violence from Mr Prickett, who the night before had made a threat to kill him, must beseen in context. That context includes that the applicant went home and duringthe next 12 hours failed for example to seek help from the police or from hisfamily or from his friends, save his father who was persuaded to loan him ashotgun. He then drove, alone, to Mr Prickett's home not, according to his evidence, intending to kill him,but shooting him at close range the moment MrPickett came out of his house.tmp

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55 (1) This section applies for the purposesof section 54.(2) A loss of self-control had a qualifyingtrigger if subsection (3), (4) or (5) applies.(3) This subsection applies if D's loss ofself-control was attributable to D's fear of serious violence from V against Dor another identified person.(4) This subsection applies if D's loss ofself-control was attributable to a thing or things done or said (or both)which—(a) constituted circumstances of an extremelygrave character, and(b) caused D to have a justifiable sense ofbeing seriously wronged.or:whivF!

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(5) This subsection applies if D's loss ofself-control was attributable to a combination of the matters mentioned insubsections (3) and (4).(6) In determining whether a loss ofself-control had a qualifying trigger—(a) D's fear of serious violence is to bedisregarded to the extent that it was caused by a thing which D incited to bedone or said for the purpose of providing an excuse to use violence;(b) a sense of being seriously wronged by athing done or said is not justifiable if D incited the thing to be done or saidfor the purpose of providing an excuse to use violence;(c) the fact that a thing done or saidconstituted sexual infidelity is to be disregarded.•

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•The qualifying trigger–Doughty (1986) 83 Cr App R319–Dmust fear ‘serious violence’–Somethingmust be said or done as per s55(4)(a) and (b)"

Dawes 2013

“the circumstances in which the qualifying triggers will ariseis much more limited than the equivalent provisions in the former provocationdefence. The result is that some of the more absurd trivia which neverthelessrequired the judge to leave the provocation defence to the jury will no longerfall within the ambit of the qualifying triggers defined in the new defence” (at para 60). zvۦ

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Bowyer 2013

“it is absurd to suggest that the entirely understandableresponse of the deceased to finding a burglar in his home provided theappellant with the remotest beginnings of a basis for suggesting that he hadany justifiable sense of being wronged, let alone seriously wronged” (at para 66).

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•The qualifying trigger–Somethingmust be said or done•Hatter [2013] EWCA Crim322•Combining the triggers –Dawes [2013] EWCA Crim322•The exclusions, s55(6)–SelfInduced–Sexualinfidelity

“as a matter of statutory construction, themere fact that in some general way the defendant was behaving badly and lookingfor and provoking trouble does not of itself lead to the disapplication of the qualifying triggers based ons55(3)(4) and (5) unless his actions were intended to provide him with theexcuse or opportunity to use violence” (atpara 58). 0;laRvێ

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“One may wonder (and the judge would have to consider) how oftena defendant who is out to incite violence could be said to ‘fear’ serious violence; often he may be welcomingit. Similarly, one may wonder how such a defendant may have a justifiable senseof being seriously wronged if he successfully incites someone else to useviolence towards him” (at para 58).

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•Reacted in the same or in a similar way to the defendant–Camplin [1978] AC 705•Characteristicspertaining to the gravity of the provocation and those to self control.–Smith [2001] 1 AC 146–AG for Jersey v Holley [2005] UKPC 23–James [2006] EWCA 14

Amelash 2013

“If a sober individual in the defendant’s circumstances, with normal levels of tolerance andself-restraint might have behaved in the same way as the defendant confrontedby the relevant qualifying trigger, he would not be deprived of the loss ofcontrol defence, just because he was not sober” (at para 25). •xv9\

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“different considerations would arise if, adefendant with a severe problem with alcohol or drugs was mercilessly tauntedabout the condition, to the extent that it constituted a qualifying trigger,the alcohol or drug problem would then form part of the circumstances forconsideration” (at para 25).