Which of these was unsuccessful in arguing provocation under the old law?i.e. were found liable for murder or manslaughter by reason of diminished responsibility, rather than manslaughter. R v Davies R v Pearson R v Ahluwalia AG for Jersey v Holley R v Ibrams & R v Betambeau R v James, Karimi R v Camplin Gregory
And now a little reminder of theory…Before we look at the current law, we need to consider why wehave 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 tohave this partial defence?Why might it not be suitable for it to be a completedefence?Is it an excuse or a justification? Professor Norrieargues that it is currently an excuse, but should workmore as ‘imperfect justification’.
Issues with the old law„Sudden and temporary‟ loss of controlRole of the juryMeaning of the reasonable manRange 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?
Some basics:Role of the Judge in loss of control pleas in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply. s.54 Look at these previous cases... Do you think they would meet the new threshold?
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. Issues with the section: R v Duffy 1949 “Sudden and The longer the gap, the more likely the temporary loss ofjudge will withdraw it. control” Allows for a ‘cooling off period’ perAhluwalia. Still must be a loss of control Law Commission didn’t want to keep these R v Cocker 1989words. Allows a whole category history ofprovoking actions or words to be taken intoaccount.
Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. Why might these words cause problems?How might this have affected these older cases? R v Mohammed R v Ibrams & R v Pearson Gregory
Element Two: Qualifying Trigger s.55 Who can be threatened? What about Who can issue other types ofthe provocation? abuse? First Trigger: Ds loss of self-control was attributable to Ds fear of serious violence from V against D or another identified person ‘Serious’ Judged subjectively violence So, D can even plead it where: Uses excessive force Makes a mistake
Extremely grave character Second Trigger: This subsection applies if Ds 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. Justifiable sense of being seriously wronged.
Other limitations on the Qualified Trigger? If D incites the violence from Sexual infidelity isn‟t accepted as V, as an excuse, he can‟t use it. an excuse. D picks up the phone to hear R v Johnson 1989 his wife conducting a phone sex conversation with her lover. He puts down the phone and goes to her, strangling her. Could D use loss of D and V are arguing. V has been abusive to V and punches her. control as a He also says that she is useless, and that he has been defence in having an affair with her sister for the last year. D stabs him, these killing him. situations? D comes home to find her husband sexually abusing their young child. She stabs him toBut... What about Edwards? Could death. he use it? Are there other situations which should also have been included.
Developing your understanding... The Test: As the old law is still good, we need to look at what that old law actually says! Were the actions of V enough Read the edited case report of Camplin to prompt a person of D‟s sex Was it enough that D in those and age with a normal degree at the back circumstances lost their answer of your booklet and of tolerance and self restraint the following questions in as much detail control? to lose their self control? as you can!Why include age? 1. What were the facts of the case? 2. What was the provocation alleged? 3. What characteristics did D want included in the „reasonable man‟? What about gender? 4. What issue of public policy limited the defence? 5. What does Devlin say that the „reasonable man‟ includes? 6. Do you agree with this? Is it clear? 7. Should these be temporary or permanent characteristics?
Is Camplin the right way to go? Camplin isn’t the last word in this... Indeed it AG for Jersey v Holleywasn’t even the earliest, but it is the one which has lived the longest. Challenge one: Can you match up all the cards He ain’t bedding no- Challenge Two: one. Never Can you put them in order? mind his age Challenge Three: No Under the extract from Camplin answer the characteristics following question: are relevant to D’s self control “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. Note: These aren’t right!
Can you be better than Miss Hart? Correct the paragraph below, to show your understanding of last lesson Loss of of Control a partialdefence to murder. It comes from the Judges and Loss Control is is a full defence to murder. It comes from the Coroners andCriminal 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 taunting under s.3 of the Homcide Act 1957. The old Act had was heavilycriticised as itit allowed a very narrow rangesituations to be put put before the criticised as allowed a very wide range of of situations to be before the jury.In jury. In addition, the Duffy had decided that loss that loss of control meant addition, the case of case of Stuffy had decided of control meant sudden andsudden. This meant that many people could not not use it including battered wivestemporary. This meant that many people could use it including deep fried wives as as they often waited until their victim posed less threat (e.g. asleep). 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 s.55Act. The trigger is either a fear of serious violence from V against an identifiable Act. The trigger is either a fear of serious anger from V against anyone, orsomething or something which or said which constitutes circumstances of a grave person, done or said done constitutes circumstances of a deadly character andcharacter and an justifiable sense of beingsense of being seriously wronged. Thisleaves D with leaves D with an justifiable seriously upset. This latter trigger is latter trigger is objectively, and includesexcludes sexual infidelity. judged judged objectively, and sexual infidelity.
Developing your understanding...The Answers! As the old law is still good, we need to look at what that old law actually says! Read the edited case report at the back of your booklet and answer the following questions in as much detail as you can! 1. What were the facts of the case? 2. What was the provocation alleged? 3. What characteristics did D want included in the „reasonable man‟? 4. What issue of public policy limited the defence? 5. What does Devlin say that the „reasonable man‟ includes? 6. Do you agree with this? Is it clear? 7. Should these be temporary or permanent characteristics? Extension: can you extend your commentary on the characteristics by referring to at least one controversial case?
The Test: and Were the actions of V enough to prompt a person of D‟s sex Was it enough that D in those and age with a normal degree circumstances lost their of tolerance and self restraint control? to lose their self control?Why include age? What word has changed from the old law? Circumstances... Was characteristics What about gender? Why might that be more flexible than the old approach?
Sexual Infidelity...A new circumstance? R v Clinton Sexual infidelity is not enough for a qualifying trigger alone. However, it is enough under the third element of „circumstances‟ (and it might be enough for DR!). D walks in on V, her V says that she is having husband, having sex with an affair and leaving D her sister. He starts for another man. She saying that it is all her arranges to come around fault as she worthless V says that she is to collect her belongings. and she begins arguing leaving D for D meets her at the door, back, and snaps, killing another man. D invites her in and then him. snaps and kills stabs her to death. her.
Thinking:Is this evidence of sexual infidelity?
Other options? Following Morgan Smith: Extreme A merged plea? emotional disturbance D hears about his ex- girlfriend‟s new relationship The Law and becomes enraged. Hebreaks into her flat and waits Commission for her to come home and 2006 & 2004 kills her.They had broken up a number of years earlier, and he was with someone else.
Plenary Back to the start: Has the law addressed these adequately?„Sudden and temporary‟ loss of controlRole of the juryMeaning of the reasonable manRange of behaviour that could be „provoking‟
Can you sort it all? Can you use yourunderstandin g tocomplete the dominoes? 15 minutes NO MORE!
Plenary: It’s Post-it time! “Changing the law hasn‟t really solved the problem”A Discuss whether or not you agree with this statement and why.B Explain the importance of the decision of CLINTON to the law on loss of control.C Explain what is meant by a „qualifying trigger‟ under s.55 Recount two changes to the law under the 2009 ActD Define the partial defence of loss of control andE identify where it comes from
Exam skills: Applying the law AO2 Now you know what the law is, can you apply it to a situation?Louise and James have been together for a number of years. James is quite immatureand depressed. On the day in question, Louise tells James she want him out of the house,as she has been sleeping with his brother, and they want to move in together. Jamescries and Louise mocks him, telling him he is not a man and slaps him a number of times.James snaps and picks up a vase, hitting her over the head twice,James calls the paramedics, who arrive and whilst transporting her to the ambulance,drop her twice, fracturing her skull further. Louise diesDiscuss James‟ liability for the death of Louise.
Now it’s over to youWorking in pairs, you are going to complete your own analysis ofa problem, creating a chain of causation and applying the law.To answer them properly, you will have to recall some of the lawwhich we have looked at earlier in the term, and remember howwe approached James and Louise... OCD Murder: Actus Reus Murder: Mens Rea Loss of Control Qualifying trigger? Enough to provoke the person with the age and sex of D in the circumstances Causation? Finally: would they be successful or not ?
It’s time to be creative!1. Write up your response to the Louisa and James problem question.2. Revise for a DRAG test on murder and voluntary manslaughter on 18th October 2012 Due Thursday 11th October 2012