According to ss.54-56 of the Coroners and Justice Act 2009, what common law defence was abolished and replaced by the new partial defence of loss of control?
The defence of provocation.
What are the three essential elements of the partial defence of loss of control under s.54 of the Coroners and Justice Act 2009?
- The killing resulted from a loss of self-control, 2. The loss of self-control had a qualifying trigger, and 3. A person of the defendant’s sex and age with a normal degree of tolerance and self-restraint might have reacted similarly.
Under s.54(1)(a) of the Coroners and Justice Act 2009, the first element of the loss of control defence is that the defendant’s acts resulted from their loss of self-control. What is the key question for the jury to decide here?
Whether the defendant’s act of killing resulted from a loss of control, which is a question of fact for the jury.
How did the Coroners and Justice Act 2009 change the requirement for the loss of self-control in relation to immediacy?
Section 54(2) explicitly states that the loss of self-control need not be ‘sudden’.
In the case of R v Jewell, how was ‘loss of control’ defined?
It was defined as a loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning.
Under s.54(4) of the Coroners and Justice Act 2009, the defence of loss of control is not available if the killing was done in a _____.
considered desire for revenge
What are the two ‘qualifying triggers’ for loss of control as stipulated in s.55 of the Coroners and Justice Act 2009?
The ‘fear trigger’ (fear of serious violence) and the ‘anger trigger’ (things done or said of an extremely grave character causing a justifiable sense of being seriously wronged).
What is the ‘fear trigger’ for loss of control under s.55(3) of the Coroners and Justice Act 2009?
The defendant’s loss of self-control was attributable to their fear of serious violence from the victim against the defendant or another identified person.
What are the two cumulative conditions for the ‘anger trigger’ under s.55(4) of the Coroners and Justice Act 2009?
The loss of control was attributable to things done or said which (a) constituted circumstances of an extremely grave character, and (b) caused the defendant to have a justifiable sense of being seriously wronged.
According to the decision in R v Dawes, who makes the objective assessment of whether the circumstances for the anger trigger were ‘extremely grave’?
The judge makes the assessment at the end of the evidence, and if the defence is left, the jury makes the final assessment.
What did the Court of Appeal hold in R v Hatter regarding the break-up of a relationship as a qualifying trigger for loss of control?
The court held that the break-up of a relationship, by itself, will not normally constitute circumstances of an extremely grave character or cause a justifiable sense of being seriously wronged.
Under s.55(6)(c) of the Coroners and Justice Act 2009, what specific circumstance must be disregarded when considering the ‘anger trigger’?
The fact that a thing done or said constituted sexual infidelity.
In R v Clinton, what was the Court of Appeal’s ruling on how sexual infidelity can be considered despite the exclusion in s.55(6)(c)?
Sexual infidelity can be considered as part of the context in which to evaluate another potential qualifying trigger, but it cannot be the qualifying trigger on its own.
According to R v Clinton, in which of the three components of the loss of control defence can sexual infidelity be fully taken into account?
In the third component, the objective test, where the jury considers all of the defendant’s circumstances (s.54(3)).
What is the objective test for the loss of control defence, as set out in s.54(1)(c) of the Coroners and Justice Act 2009?
Whether 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 a similar way.
According to s.54(3) of the CJA 2009, which circumstances of the defendant are excluded from the objective test for loss of control?
Circumstances whose only relevance is that they bear on the defendant’s general capacity for tolerance or self-restraint.
In R v Asmelash, what did the Court of Appeal decide about considering voluntary intoxication in the objective test for loss of control?
Voluntary intoxication cannot be taken into account, as its only relevance is to the defendant’s capacity for tolerance and self-restraint, which is excluded by s.54(3).
What is the burden and standard of proof for the defence of loss of control?
The defendant has an evidential burden to raise the issue, then the burden shifts to the prosecution to disprove the defence beyond a reasonable doubt.
Alan Norrie describes the philosophical basis of the new loss of control defence, as envisioned by the Law Commission, as one of ‘_____ justification’.
imperfect
In contrast to ‘imperfect justification’, what term does Alan Norrie use to describe the philosophical basis of the old law of provocation?
Compassionate excuse.
What was the key problem with the objective test under the old provocation law as interpreted in R v Smith (Morgan James)?
It became too subjectivised, allowing juries to consider characteristics that affected the defendant’s general capacity for self-control, blurring the line with diminished responsibility.
Which Privy Council case overruled R v Smith (Morgan James) and held that characteristics affecting general self-control should not be considered in the objective test for provocation?
Attorney General for Jersey v Holley [2005].
The new diminished responsibility plea is set out in s.2 of the Homicide Act 1957, as substituted by which section of the Coroners and Justice Act 2009?
Section 52 of the Coroners and Justice Act 2009.
What are the four components of the modern diminished responsibility defence?
- An abnormality of mental functioning, 2. arising from a recognised medical condition, 3. which substantially impairs D’s ability to do certain things, and 4. provides an explanation for the killing.
