Loss Of Control And Diminished Responsibility Notes

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Revision: Criminal

[MURDER - LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY]
Murder

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Mandatory life sentence pursuant to the Murder Act 1965 (end of death penalty)

2 special defences - arise only in relation to murder: loss of control and diminished responsibility Loss of control

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Consensus that the special defences to the offence of murder needed reform (judgements in Attorney General for Jersey v Holley)

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Coroners and Justice Act 2009 - changes to the special defences o

Defence of provocation abolished and replaced with new defence entitled 'loss of control'

S54 Coroners and Justice Act 2009: Where a person (D) kills or is party to the killing of another (V), D is not to be convicted of murder if - (a) D's acts and omissions, in doing or being a arty to the killing resulted from D's loss of self-control, (b) The loss of self-control had a qualifying trigger, and (c) A person of D's sex and age, with a normal degree of tolerance and self-restrain and in the circumstances of D, might have reacted in the same or in a similar way to D - reaction of a normal person

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NEW area of law - has only come before the court once - R v Clinton, Parker & Evans (2012)

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Burden of proof rests with the prosecution - they need to prove beyond all reasonable doubt that only one of the components is absent for the defence to fail (R v Clinton)

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If successful then the conviction is reduced to manslaughter

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Despite Clinton - much remains undefined and untested

? Loss of self-control

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Element is not defined in the act

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Old common law largely (but not completely) irrelevant ( has replaced provocation) so fact based 1

Revision: Criminal

[MURDER - LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY]

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But some case law helpful:

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Following R v Richens (1993) - seems likely that although there won't be a need for complete loss of control so that the defendant does not know who he was doing - he must have been unable to restrain himself - loss of temper not enough

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The loss of control need not be sudden - shows how the old law of provocation developed o

case of Ahulwalia - defence of provocation not lost just because of delay btw the provocative words and the killing - but up to jury to decide length of the delay

? The Qualifying trigger

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Clinton: new defence has 'raised the bar' : more difficult to raise than provocation was

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'Qualifying trigger' defined in S55: (1) This section applies for the purposes of section 54 (2) A loss of selfcontrol had a qualifying trigger if subsection (3), (4). Or (5) applies (3) If D's loss of selfcontrol was attributable to D's fear of serious violence from V against D or

another identified person

(4) If D's loss of selfcontrol 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 justifiable sense of being seriously wronged (5) If D's loss of selfcontrol was attributable to a combination of the matters in subsections (3) and

(4)

(6) In determining whether a loss of selfcontrol had a qualifying trigger - a. D's fear of serious violence is to be disregarded to the extent that it was caused by a thing

which D incited to be done or said for the purpose of providing an excuse to use violence

b. A sense of being seriously wronged by a thing done or said is not justifiable if D incited

the thing to be said for the purpose of providing an excuse...

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Fear of serious violence: o

Link with self-defence - trigger to provide for situations where the defendant is justified in using force but where the force is unreasonable preventing self-defence - R v Martin (Anthony) - used excessive force on burglars so self-defence therefore not available. Old law on provocation not useful either given the degree of planning involved in his action - but new law might have helped 2

Revision: Criminal

[MURDER - LOSS OF CONTROL AND DIMINISHED RESPONSIBILITY]

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Things said or done which constitutes circumstances of an extremely grave nature and causes a justifiable sense of being seriously wronged o

No clear definition in the act But now have clear direction that both s 55 (4)(a) & (b) require objective evaluation (confirmed by Clinton)

i)

Things said or done (or both)Must be something actually said or doneR v Acott - if a person driving in slow-moving traffic caused by snow lost control wouldn't be able to rely on defence (from old law)

ii)

Constitutes circumstances of an extremely grave natureDifficult as act and explanatory notes are silent on the meaning of the phraseWe know it must be determined objectivelyThought that is the same as that required when evaluating the perception of the threat within the defence of duress

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Causes defendant to have a justifiable sense of being seriously wrongedWhether sense of being seriously wronged is justifiable is an objective question - confirmed in ClintonNarrows the law: Under the old law almost anything could constitute provocation: R v Doughty (a baby crying); R v Davies (watching an adulterous meeting)Law Commission - a parent coming home to find his child was being raped = a situation where the defence would now be availableOld cases which provide examples of when the trigger could now arise:

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R v Ahluwalia - D had been victim of domestic violence for years - on the night in question her husband had argued with her and threatened to beat her the following morning - after he fell asleep she poured petrol over him and set him alight, causing burns from which he later died 3

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