LOSS OF SELF CONTROL

1)MORE CONTROL OVER WHEN THE DEFENCE CAN BE RAISED BY THE JUDGE

The new defence improves the control the trial judge has over whether or not there is sufficient evidence to raise a defence of loss of control. This is because the judge must consider whether the evidence submitted by the D has a chance of succeeding in front of a jury in court. This improved filtering mechanism means spurious cases such as trying to argue that a babies crying would probably not be put to the jury (DOUGHTY) and so result in a much more consistent use of the defence where it is needed.

2)LOSS OF SELF-CONTROL

The Law Commission had proposed removing the ‘LOSS OF CONTROL’ criteria completelyleaving the D to prove a combination of the triggers as a justification for the killing.

This was because it recognised that women in abusive relationships may kill from a ‘combination of anger, fear & a sense of desperation’ & not necessarily from a ‘Loss of control’

The Government decided not to follow this proposal & so D must argue they had a ‘loss of self control.’

This could impact on cases such as those of domestic violence. For example if the LOSS OF CONTROL requirement had been removed a jury may have been more likely to allow the defence where the D shows a long period of domestic abuse and kills (such as in AHLUWALIA), and argues this as a justification for killing.

However, as the D would have to argue they were right to lose self control the jury would find it more difficult to allow this as an excuse for such behaviour if there was a delay between the trigger event, the loss of control and the killing.

IT IS ALSO QUITE CLEARLY STATED IN THE LEGISLATION THAT A REVENGE KILLING IS NOT A QT FOR THE LOSS OF CONTROL.

The concession was that unlike before the loss of self control no longer had to be ‘sudden’ but this doesn’t address problems with loss of self control as

it is probable that some abused women will still not be able to show loss of self control & so will not be able to use the defence.

REFORM: Simply do as the Law Commission suggested & remove the requirement that there must be a ‘LOSS OF CONTROL’

3)REVENGE

Although you might have a loss of self-control if you kill in revenge you would not be able to use the defence:

BAILLIE

FACTS:D killed a drug-dealer who had been threatening his 3 drug addicted sons. There was a loss of self-control as there was only a short space of time between the threats & the attack.

WOULD THIS SITUATION NOW BE EXCLUDED BY A JUDGE FROM USING THE DEFENCE AS IT WOULD BE SEEN AS AN ACT OF REVENGE?

THIS WOULD CLEARLY BE AN INJUSTICE TO THE DEFENDANT

4)ANGER TRIGGER

This will only succeed if D can show the ‘things said or done’ constituted circumstances of ‘an extremely grave natureAND D had a justifiable sense of being seriously wronged’.

It has been said that to have 2 tests in 1 is excessive

It is not clear what will constitute these circumstances so there will be many inconsistent decisions in cases until appeals interpret the phrases

But it would surely impossible now for the new defence in a case such as DOUGHTY Where the CA allowed the defence where D had killed his 17 day old son after the baby would not stop crying?

5)SEXUAL INFIDELITY

This is no longer allowed as a qualifying trigger for the defence. Yet the defence of provocation was largely created for such situations.

If someone unexpectedly finds their partner having sex with another person, they are likely to lose their self control. But if this leads to the, killing their partner they will no longer have a partial defence to a charge of murder.

There is though no definition of what ‘SEXUAL INFIDELITY’ is which is going to cause problems:

MOHAMMED

REFORM: This point which is already understood now in a different way since the case of CLINTON could be resolved by removing the exclusion & leaving the evidence to be assessed according to the ANGER TRIGGER

6)FEAR OF SERIOUS VIOLENCE

This trigger was partly intended to assist women who fear violence at

the hands of an abusive partner & subsequently kill. The act states that it cannot be a fear that the V will IN THE FUTURE use serious violence against people generally.

This qualifying trigger was added largely as a result of the lack of defence in the cases of CLEGG & MARTIN.

However the requirement that D must have lost his self control may make it difficult for such defendants to use the defence

7)JUSTIFICATION OR EXCUSE FOR THE KILLING?

In 2008 the Ministry of Justice declared that it wanted to both narrow the use of the defence of PROVOCATION and get rid of the use of the phrase PROVOCATION because it “carries negative connotations”

The Law Commission agreed with changing the defence from PROVOCATION which acted as an EXCUSE to killing, to a defence that would work as a JUSTIFICATION for the killing, with the D providing a reasonable explanation for the killing.

DIMINISHED RESPONSIBILITY

1)BURDEN OF PROOF

This should not be on the D, in most other defences the D only has to raise the issue & the prosecution has to disprove it. This should also apply to DR. At the moment the D’s pleading DR are at a disadvantage which isnot faced by those raising LOSS OF CONTROL. It is also argued that this is a contravention of the HRA. R V FOYE 2013

REFORM: Reverse the burden of proof so that it matches other defences.

2)DEVELOPMENTAL IMMATURITY

The Law Commission also recommended that developmental immaturity in those under 18 should be included in the defence of DR. Their reason was that there is evidence to show that frontal-lobes of the brain which play an important role in the development of self-control & in controlling impulsive behaviour do not mature until the age of 14.

The Government took the view that there was no need to include this as a specific cause of DR.

If there is no such defence children as young as 10 may be convicted of murder when they are developmentally immature. They cannot use the existing law as they are not suffering from an ABNORMALITY OF MENTAL MALFUNCTIONING

REFORM: Take the advice of the Law Commission & include developmental immaturity as a recognised medical condition.

3)ABNORMALITY OF MIND

There have been various proposals for reform of law in this area. Cases over the years have shown significant difference of opinion between doctors as to what conditions fall into this definition,

The CORONERS & JUSTICEACT 2009 replaces ‘abnormality of mind’ with ‘abnormalityof mental functioning’ The new act also makes it quite clear that there must ‘RECOGNISED MEDICAL CONDITIONS’ which must be the cause of the ABNORMALITY.

The aim of the act is that the defence should not be able to succeed where the D’s mental condition makes no difference to his behaviour, in that he would have killed regardless of it.

However because there has to be a RECOGNISED MEDICAL CONDITION there is a risk that new & unrecognised conditions may not be accepted as having sufficient medical authority o be able to be allowed to be put to the jury. This means cases such as BATTERED WIVES SYNDROME & other emerging conditions risk being rejected as a condition until doctors formally recognise the condition. This could mean that the law stagnating or D’s being unable to use the defence as they are first to be diagnosed.

4)DR & INTOXICATION

The reform of DR does not solve the problem of INTOXICATION as a recognised medical condition, such as ADS. The new defence is unclear as to whether it is now justified to allow alcoholics a defence without having to look at voluntary & involuntary drinking.

Nor does it solve the problem of the dual effect issues of intoxication & a medical condition (DIETSCHMANN).