Criminal law- Loss of Control
what are the parameters for the defence?
set out in s54 of the coroners and justice act
- Only a defence to murder
- Only a partial defence, reducing murder to manslaughter
what is the three stages test for loss of control
1. D lost self-control;
2. The loss of control was caused by a ‘qualifying trigger’; and
3. A person of D’s age and sex with a normal degree of tolerance and self- restraint and in the circumstances of D might have reacted in the same/similar way
what does loss of control mean?
- D must experience a loss of control at the time of the killing
- This is a subjective question – see Dawes, Hatter & Bowyer [2013] EWCA Crim 322 – must show that this D lost control
- The loss of control need not be the result of anger or extreme anger
- Jewell [2014] EWCA Crim 414
- “whether D has lost his ability to maintain his actions in accordance with considered judgment or whether he had lost normal powers of reasoning”
what are the rules around desire for revenge?
- If the defendant acts out of a desire for revenge the defence will fail – s54(4).
- Clinton [2012] EWCA Crim 2 ‘the greater the level of deliberation, the less likely it will be that the killing followed a true loss of self-control’
- R v Jewell [2014] EWCA Crim 414 - This bore every hallmark of a pre-planned, cold-blooded execution
does loss of contorl need to be sudden?
- Section 54(2) For the purposes of subsection (1) (a), it does not matter whether or not the loss of control was sudden.
- Dawes- Different individuals in different situations do not react identically, nor respond immediately
what aree the qualifying triggers for loss of control?
2)A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3).. if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4) .. 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 justifiable sense of being seriously wronged.
there must be evidence of a loss of control DUE To the qualifying trigger. Evidence of one without the other is insufficient - R v Inglis [2010] EWCA Crim 2637
what are the rules around fear of seious violence?
- D will need to show that he/she lost control because of a genuine fear of serious violence (subjective test), the fear need not be reasonable
- The threat of violence must emanate from V
- The threat of violence can be to D or another identified person
what are the rules around being seiously wronged?
very high threshold
Clinton, Parker, Evans [2012] EWCA Crim 2 - apart from D’s sense of being wronged (a subjective matter); all other aspects of the provision should be measured against objective standards:
- The circumstances facing the D must be unusual and not the normal trials and disappointments of life: Hatter – part of the Conjoined appeals in Dawes [2013] EWCA Crim 322
- Zebedee [2012] EWCA Crim 1428
- Bowyer (part of the Conjoined appeals in Dawes [2013] EWCA Crim 322)
- Robert Knight Unreported 29 July – 2nd August Basildon Crown Court 2019
what about self induced qualifying trigger?
- Section 55(6)(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 D with an excuse to use violence’
- Section 55(6) (b) - a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
Dawes- unless his actions were INTENDED to provide him with the excuse of opportunity to use violence- then the defence will allpy
what are the rules aorund sexual infidelity as a qualifying trigger?
- Section 55(6)(c) provides that sexual infidelity is not a thing said or done that can amount to a qualifying trigger.
- R v Clinton [2013] Q.B. 1 - Lord Judge CJ
if the only thing happened was sexual infidelity we should compartmentalise it and throw it away however where it is part of the context, the fact of infidelity is an integral part in trying to find the qualifyig trigger.
what are the rules around A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D might have reacted in the same or similar way to D
This is an objective question and is decided by the jury.
Age and Sex- cmaplin
tolerance and self-restraint- camplin
- D may not be able to reach this normal standard due to mental illness but the law operates strictly here - R v Rejmanski; R v Gassman [2018] 1 Cr App R 18
in the circumstances-
- Section 54(3): a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self- restraint
- Mental illness reducing that capacity would not be relevant to the partial defence of loss of control – R v Rejmanski; R v Gassman [2018] 1 Cr App R 18
- Dawes [2013] EWCA Crim 322 – cumulative impact of earlier events
- R v Asmelash [2013] EWCA Crim 157 – intoxication?
- Clinton [2012] EWCA Crim 2 - Sexual infidelity can be considered as a circumstance
might have reacted in the same way- r v goodwin
Dawes
facts-
D went to his estranged girlfriends house and found her alseep with her boyfriend- he awoke him and started punching him in the face and hitting his with a bottle. according to D the boyfriend took the bottle off him and attacked him. the D grabbed a knife from the kitchen and stabbed him in the neck. at trial he raised LOC which was not accepted by the jury. the judge held that this defence could not be put to the jury as he incited the violence.
held
to rely on LOC it must be shown that the D was in a situation of a extremely grave character and had been seriously wronged. thus the judge was correct in not putting the defence to the jury.
R v Jewell
D had driven to the Vs house where he had shot him twice and convicted for murder, he appealeed claiming he had lost the ability of control. however it was clear that this was planned as this was his ordinary route to collect the victim before going to work and therefore appeal was denied .
R v Clinton, parker and evans
facts:
all three Ds killed their wivens in their family home because of sexual infidelity, all three of their claims were rejected and there convicted of murder
held: if sexual infidelity was the only potential qualifying trigger it was to disconcerned. if there was other circumstances, it should be taken into account where it is integral to the facts as a whole.
clintons appeal was allowed but parker and evans were dismissed.
hatter
facts
looking at a breakdown of a relationship- this would usually not constitute circumstances of an extremely grave nature that gives comeone an objective justifiable sence of being seriously wronged
held: the circumstances facing the D must be unusual an not the noraml trials and disappointments of life
Zebedee
facts:
D is caring for his elderly father who suffers from alzimers and is doubtable incontenant. one night V soilds himself twice in quick succession, D loses control and kills him. he tried to argue LoC but the jury rejected this.
bowyer
facts:
D knows the V and knows they are both seeing the same woman and D decides that one night he is going to break in and steal from him. he did not think the V would be at home and had no plans for confronting him. V returns home and there is a fright between the two and D ends up killing V. he tried to argue LoC with the trigger that he feared serious violence and V said extremely hurtful things about the woman
held: the CoA said that it coculd not be said that V did not give him any cause to feel justifiably wronged. D was an intruder in Vs home and he was entitled to use reasonable force to remove him from his home. there was no trigger.
Clinton
fcats:
clintons wife admitted to his that she had been having an affair, he told his wife that he was going to committ suiced and she replied that he didnt have the balls to do it. he killed her by beating her with a baton and strangling her.
held: appeal was allowed and said that sexual infidelity can be context for a qualifying trigger but not as a trigger itself
R v Rejmanski
D may not be able to reach this normal standard due to mental illness but the law operatesstrictly here. if they cannot reach this normal standard the defence of dim rep will be available
D was suffering with PTSD
R v Gasmann
D has a personality disorder and suffered with anti-social and emotionally unstable personality states
Camplon
it means an ordinary person of either sex, not exceptionally excitable or pugnatious but possessed such powers of self-control as everyone is entitled to expect that his fellow citizens will exercide in society as it is today
R v Asmelash
facts:
D has been drinkign with V all day, D claims to have lost control and stabbed the V in oder to protect himself
Loss of contorl had to be appraoched without refernce to the Ds voluntary intoxication. if a sober individual in the ds circumstance with the normal tolerance and self-restraint would have behaved in the same way, then he would argue this