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Lo c2013

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  • AG for Jersey v Holley
  • Transcript

    • 1. Offences Against the Person [3]: Voluntary Manslaughter Loss Of Control MAH 2013-14
    • 2. Which of these was unsuccessful in arguing provocation under the old law? R v Davies R v Ibrams & Gregory R v Pearson R v Betambeau R v Camplin AG for Jersey v Holley R v James, Karimi R v Ahluwalia All of you need to identify who was unsuccessful Most of you should be able to explain why Some of you will be able to identify cases where the law may have changed under the new test.
    • 3. Loss of Control: An introduction to the theory behind the defence. Before we look at the current law, we need to consider why we have developed this partial defence, and what it should aim to do. Then we can work it if it’s doing what it should! Why do we allow people who lose their self-control to have this partial defence? Why might it not be suitable for it to be a complete defence? Is it an excuse or a justification? Professor Norrie argues that it is currently an excuse, but should work more as ‘imperfect justification’.
    • 4. Was the old law really so bad? Top Problems with the Old Law…  ‘Sudden and temporary’ loss of control  Role of the jury  Meaning of the reasonable man  Range of behaviour that could be ‘provoking’ Whilst we look at the new law, have these in the back of your mind: Does the new law adequately address the issues raised? Student Task: Using what you learnt last lesson, explain why each of these is an issue with the old law, and aim to link them to a relevant case.
    • 5. What does the law actually look like? Coroners and Justice Act 2009 s.54-5
    • 6. The Basics: Role of the Judge in loss of control pleas 1. Look at these previous cases... Do you think they would meet the new threshold? Why? Why not? 2. How does the new instruction alter the role of the judge regarding provocation? “…in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.” s.54
    • 7. Element One: Loss of Self Control “(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.” Duffy 1949 Some AO2 points to consider…  The longer the gap, the more likely the judge will withdraw it.  Allows for a ‘cooling off period’ per Ahluwalia.  Law Commission didn’t want to keep these words.  Allows a whole category history of provoking actions or words to be taken into account. - what the CA recently called “cumulative impact”  How has this decision altered the prior precedent of Duffy?  Why do you think we needed to change the law? Student Thinking: Who do you side with? The Law Commission or the Government? Why?
    • 8. “Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.”  What are the key words of the section?  Why might they cause problems for trials in the future? How does this approach affect the battered wife? Evans 2012 “the greater the deliberation the less likely that it followed a true loss of control.” The word ‘considered’ is sufficient to instruct the jury.
    • 9. A Quick Plenary: What’s the phrase? Loss of self control Challenge: Before next lesson, make up your own dingbat related to the topic. Bring it with you to the lesson!
    • 10. Element Two: ‘Qualifying Trigger’ s.55 First Trigger: D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person Judged subjectively So, D can even plead it where he…:   Uses excessive force Makes a mistake Who can be threatened? Who can issue the trigger? San she argue s.55(3)? Anne is married to Bob, who is an abusive drunk. However, he leaves Anne alone but when drunk likes to beat up random people, and has previously caused serious harm to them. One night she comes home and finds him drunk. He tries to leave the house but Anne, knowing he is likely to cause harm to random people, tries to get him to stop. He pushes her out of the way, and she panics, reaching for a lamp hits him over the head with it, killing him.
    • 11. Doesn’t that solve all the problems? … maybe not! Can you ‘lose’ self control through fear? What does ‘serious violence’ mean? What types of abuse may be counted? Challenge: can you link these to a case under the old law for comparison?
    • 12. Starter: Is this evidence of sexual infidelity?
    • 13. Trigger Two: Circumstances of an extremely grave character which left D with a justifiable sense of being seriously wronged Extremely grave character This will be up to the jury to decide, once the judge lets them hear it. Cases which might still have met the test? Cases which would not meet the new threshold? Justifiable sense of being seriously wronged This is an objective test, which won’t take into account the personal beliefs of D. Thinking: Is the breakup of a relationship “circumstances of an extremely grave character”? Hatter 2013
    • 14. So what does this actually mean? Dawes 2013 1. How has the meaning of ‘loss of control’ changed under the new law? 2. What is meant by ‘cumulative impact’ and how might that help a defendant? 3. Do they think that there will be many cases under the second trigger? Why do you think this is? 4. If D is behaving badly and starts the fight, can he still argue loss of control? Why? Why not? 5. Which case, predating the act, is no longer strictly good law? 6. How will the approach to the new qualifying trigger differ from the old law? 7. Can you identify at least three cases which might now be classes as “absurd trivia” and not sufficient for the new law, although they were for the old law on provocation? 8. According to Lord Judge, what will not be enough for the second trigger? 9. How do we judge the second trigger and why do you think this is?
    • 15. Other limitations on the Qualified Trigger? If D incites the violence from V, as an excuse, he can’t use it. Sexual infidelity isn’t accepted as an excuse. D comes home to find her husband sexually abusing their young child. She stabs him to death. D picks up the phone to hear his wife conducting a phone sex conversation with her lover. He puts down the phone and goes to her, strangling her. D and V are arguing. V has been abusive to V and punches her. He also says that she is useless, and that he has been having an affair with her sister for the last year. D stabs him, killing him. Could D use loss of control as a defence in these situations?
    • 16. What did the old law say? Challenge one: Can you match up all the cards Challenge Two: Can you put them in order? Challenge Three: Answer the following question: “the approach of the courts to the elements affecting D’s self control is too limiting.” Aim to use at least two cases in your response Why include age?  What about gender? “Person of D’s Age and sex with a normal degree of tolerance in those circumstances” Part One: Were the actions of V enough to prompt a person of D’s sex and age with a normal degree of tolerance and self restraint to lose their self control?
    • 17. Some basic thoughts…  What word has changed from the old law?  Why might that be more flexible than the old approach?  What type of circumstances may be unacceptable? Circumstances... Was characteristics Part Two: And was it enough that a person in D’s circumstances would have acted in the same way? Asmelash 2013
    • 18. Clinton 2012 Sexual infidelity is not enough for a qualifying trigger alone… However, it is enough under the third element of ‘circumstances’ as long as something else was the immediate trigger. (and it might be enough for DR!) Can sexual infidelity be a circumstance, even if it can’t be a trigger?
    • 19. Can you be better than Miss Hart? Loss of Control is a full defence to murder. It comes from the Judges and Criminal Justice Act 2009 ss.54-5. It was designed to replace the old defence of taunting under s.3 of the Homcide Act 1957. The old Act had was heavily criticised as it allowed a very narrow range of situations to be put before the jury. In addition, the case of Stuffy had decided that loss of control meant sudden. This meant that many people could not use it including deep fried wives as they often waited until their victim posed less threat (e.g. asleep). To use the new Act, D must have a qualifying trigger, as defined in s.54 of the Act. The trigger is either a fear of serious anger from V against anyone, or something done or said which constitutes circumstances of a deadly character and leaves D with an justifiable sense of being seriously upset. This latter trigger is judged objectively, and includes sexual infidelity. Correct the paragraph below, to show your understanding of last lesson Loss of Control is a partial defence to murder. It comes from the Coroners and Criminal Justice Act 2009 ss.54-5. It was designed to replace the old defence of provocation under s.3 of the Homicide Act 1957. The old Act had was heavily criticised as it allowed a very wide range of situations to be put before the jury. In addition, the case of Duffy had decided that loss of control meant sudden and temporary. This meant that many people could not use it including battered wives as they often waited until their victim posed less threat (e.g. asleep). To use the new Act, D must have a qualifying trigger, as defined in s.55 of the Act. The trigger is either a fear of serious violence from V against an identifiable person, or something done or said which constitutes circumstances of a grave character and leaves D with an justifiable sense of being seriously wronged. This latter trigger is judged objectively, and excludes sexual infidelity.
    • 20. Got it? Can you apply the law to produce a law report?
    • 21. Law Reform: What other options have we got? Extreme emotional disturbance D hears about his ex-girlfriend’s new relationship and becomes enraged. He breaks into her flat and waits for her to come home and kills her. They had broken up a number of years earlier, and he was with someone else. Following Morgan Smith: A merged plea? The Law Commission 2006 & 2004
    • 22. Back to the start: Has the 2009 Act adequately addressed the weaknesses of the previous law? ‘Sudden and temporary’ loss of control Role of the jury Meaning of the reasonable man Range of behaviour that could be ‘provoking’ Using what you have learnt about the way the current law operates, and potential alternatives, evaluate whether the changes have addressed this issues adequately. All of you will be able to decide whether the law has improved that area Most of you will be able to support your conclusion with reference to either a case or a relevant section of the statute Some of you will be able to evaluate how far they have adequately addressed the issues by looking at both sides.
    • 23. Pure Application of the Law
    • 24. Can you sort it all? Student Task: Using all of your learning last term on the powers of the police, reconstruct the dominoes! Lollipop level No handouts, just brains Sticker Satisfactory? Use the handouts or a handy textbook Too easy? Can you explain two recent clarifications on the defence of loss of control or DR
    • 25. Showing your improvement! Discuss the extent to which recent reforms to murder in the Coroners and Justice Act 2009 are a change for the better but have not necessarily satisfied those who campaigned for change [50] We are going to plan this essay, which you will complete for homework this week. Your goal is to improve on your attainment by at least 2 marks!
    • 26. Plenary: It’s Post-it time! E A B C D “Changing the law hasn’t really solved the problem” Explain whether or not you agree with this statement and why. Explain the importance of the decision of CLINTON to the law on loss of control. Explain what is meant by a ‘qualifying trigger’ under s.55 Recount two changes to the law under the 2009 Act Define the partial defence of loss of control and identify where it comes from
    • 27. Planning the essay: Improving your Part A Responses Look over your last essay and at your progress. Student Task: Take a pen (in a different colour to Miss Hart’s!) and look at the comments. Add in the information which is missing (this will help you when it comes to revision.) Now fill in your tracking sheet.  Did you hit your target? If so, let me know and we can sign it off.  If not, this must be your focus in the next essay.
    • 28. What do you think of this response? Provocation was previously controlled under S2 of the homicide act 1957, the act stated where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. The new defence S54-56 Coroners and Justice Act 2009 replaced defence of Provocation S3 Homicide Act 1957; it came into force October 2010. There are three stages to proving loss of self control. Stage one is the defendant’s actions (in doing or being a party to a killing) must be down to the result of a loss of self control. There is no need for loss of self control to be ‘sudden’ however in court a jury can still take into account the delay between the incident and the killing, this is now available to a defendant if they acted in a ‘considered desire for revenge.’ A case related to this is Duffy 1949, the defendant killed her husband after mistreatment, she removed their child from the home and when her husband was asleep she killed him with a hatchet and hammer, she was found to be guilty. Previously any cooling off period might have counted against the defendant. This was problematic for women who were in violent relationships; they were unable to plead the defence due to the perceived element of pre-meditation. In Ahluwalia a woman had been in an arranged marriage, her husband was very violent towards her over a period of 10 years. She poured white spirit over her husband and set it alight causing his death. The courts accepted the possibility of a slow burn reaction; however it is very difficult to prove. Court of appeal concluded diminished responsibility. Discuss the extent to which recent reforms to murder in the Coroners and Justice Act 2009 are a change for the better but have not necessarily satisfied those who campaigned for change [50]
    • 29. Plenary: Name the case! Challenge: what’s the odd one out and why?

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