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Loss of Self Control CJA 2009 - Coggle Diagram
Loss of Self Control CJA 2009
1) Loss of self-control
For the new defence the defendant must have lost their self-control at the time of the killing.
S.54(2) CJA (2009)
expressly states that the loss of self-control need not be sudden.
This provision was included to try and avoid discriminating against women who lose their self-control more slowly than men (‘slow burn’ reaction).
In
R v Dawes (2013)
it was noted that the loss of control might follow from the cumulative impact of earlier events.
2) Resulting from a qualifying trigger
The loss of self-control must have been caused by a qualifying trigger, defined in
S.55 CJA (2009)
The qualifying trigger exists when the defendant has a loss of self-control attributable to;
Things said or done
Things said or done can only amount to a qualifying trigger if they amount to circumstances of an extremely grave nature and cause the defendant to have a justifiable sense of being seriously wronged
- S.55(4) CJA (2009)
The defendant must have a sense of being seriously wronged (subjective test) but the defence will only be allowed if the sense of being seriously wronged was justifiable (objective test to be determined by the jury).
In
R v Zebedee (2012)
The Court of Appeal noted that whatever had triggered the violent outburst should have been left to the jury.
Where something said or done related to sexual infidelity it is to be disregarded as stated in
S.55(6)(c) CJA (2009)
A fear of serious violence from the victim
This allows a partial defence where the complete defence of self-defence is not available.
Where the qualifying trigger is a fear of a more significant attack in the future, this is a subjective test and the fear need not be reasonable.
The fear of serious violence needs to be in respect of violence against the defendant or against another identified person.
This defence could be used by a homeowner who kills a burglar as seen in the
Tony Martin case.
3) The defendant’s response to the trigger: The Objective Test
A person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant must have acted in the same or similar way to the defendant as stated in
S.54(1)(c) CJA (2009)
Burden of proof
If sufficient evidence of the partial defence is raised, the burden of disproving the defence of loss of control beyond reasonable doubt rest with the prosecution as stated in
S.54(5) CJA (2009)
The new defence of loss of self-control was established under the
CJA (2009)
act which abolished the old defence of provocation and replaced it with the new defence after large amounts of criticism.
There are three fundamental aspects to the defence:
1) There must be a loss of self-control
2) The defendant’ loss of control must have a ‘qualifying trigger’
3) The defendant’s response to the trigger
Criticisms
Victim Blaming
Encourages a culture of blaming the victim for their own murder.
A trial risks focuses on the deceased’s behaviour rather than the defendant’s. Inevitably, the deceased it not able to answer these accusations.
Sexual Infidelity
Despite the ruling in R v Clinton, Parker and Evans (2012), sexual infidelity is no longer allowed as a qualifying trigger, yet the defence of provocation was created for such a situation.
Loss of Control
Excludes individuals who might have a moral justification for their conduct
Medical Euthanasia