Defence of Loss of Control - Essay Example

? Defence of Loss of Control The law relating to voluntary manslaughter has been modified to some extent by the enactment of the Coroners and JusticeAct 2009. Section 56 of this Act abolished the common law provocation defence, and annulled section 3 of the Homicide Act 1957. The defence of loss of control is restricted to murder and is unavailable for other offences. It constitutes a partial defence, because on successfully pleading loss of control the defendant while being absolved of murder will be convicted of the lesser offence of manslaughter.1 The previous position, in this regard, was patently unjust, with regard to cases wherein there had been a lapse of time between the provocation and the killing. The requirement for a defence of provocation was a sudden and temporary loss of control, which clearly favoured the impulsive and short – tempered individual. In general, the defence of provocation under the common law had been denied to individuals who had not acted spontaneously, consequent to the provocative action or words of the victim. It was also denied to people who were subjected to a sequence of provocative actions that finally caused them to kill their persecutor.2 In addition, a defence of loss of control is admissible, only if certain conditions are satisfied. These have been described in the Coroners and Justice Act 2009.3 One of the most important of these conditions is that the defendant must have lost self – control, due to a qualifying trigger. In R v Clinton,4 these issues were discussed in depth.5 Clinton appealed against his conviction for the murder of his wife. It was held that partial defence of loss of control, in murder cases, could not entirely exclude sexual infidelity as a trigger for the violent act.6 Clinton had pleaded guilty to manslaughter based on loss of control or of diminished responsibility. A situation of an extremely grave nature that causes the defendant to believe that he has been seriously wronged can be classified as a qualifying trigger.7 However, the applicable statute, namely the Coroners and Justice Act 2009 had not included sexual infidelity as a qualifying trigger. As such, the erstwhile defence of provocation has been annulled and supplanted with a partial defence of loss of control. This was achieved, via the provisions of the Coroners and Justice Act 2009.8 An expansion has been achieved by means of this new defence, as it encompasses instances of loss of control occasioned by anger or outrage, and fear. This change was the outcome of the efforts of the Law Commission in the years 2004 and 2006, and which was finalised by the Government consultation paper of 2008.9 With regard to provocation, the Coroners and Justice Act 2009, while considering the previous law, engenders a strikingly different approach and attribution of prominence that is the outcome of the deliberations of the Law Commission. However, the suggestions of the Law Commission have not been adopted in their entirety. The principal change recommended by the Law Commission was that the new partial defences relating to anger and fear were to be construed in a manner that required the abandonment of the loss of control. 10 Nevertheless, this recommendation of the Law Commission was not accepted. As such, the Law Commission had made a recommendation that required killing through fear and anger to be viewed from an entirely different perspective.11 This perspective was essentially founded on the notion of rejection of loss of control. Moreover, the Coroners and Justice Act 2009 describes the conditions wherein a qualifying trigger could be present.12 Objective evaluation is essential, in accordance with the requirements of subsection 55(4) of this Act. At the same time, the prohibitions in subsection (6) of this Act served to complicate the process of objective evaluation. This latter subsection identified several features that were to be explicitly excluded from the class of qualifying triggers.13 In addition, the greatest difficulty was encountered with subsection 55(6)(c) of the Coroners and Justice Act 2009, which clearly declared that “the fact that a thing done or said constituted sexual infidelity is to be disregarded”. This directed, prima facie, that sexual infidelity could not constitute a qualifying trigger. 14 Furthermore, a major change effected by the substitution of the common law defence of provocation by the partial defence of loss of control by the Coroners and Justice Act 2009, was with regard to loss of control. It was no longer necessary for the loss of control to be sudden, which was essentially aimed at preventing injustice to a female who killed her tormentor after years of abuse. 15 At the same time, this new Act declared that sexual infidelity, in isolation, was not to be regarded as sufficient reason to justify loss of control. However, the decision in R v Clinton, served to establish that sexual infidelity could be the basis of loss of control and not just a qualifying trigger. This case related to a man who killed his partner, subsequent to discovering that she had commenced a sexually intimate relationship with another man. 16 Moreover, she had taunted the defendant by stating that she had been involved with other men, in the same fashion. In addition, she had mocked the defendant on discovering that he was perusing suicide websites, stating that he was too much of the coward to kill himself. Furthermore, she told the defendant that she was deserting him and would leave their children with him. 17 It is indeed distressing that the courts had to establish this feature of qualifying triggers, and that the statute had failed to do so. The issues raised in this case, were whether an infidelity claim deliberately made with the intention of hurting the other party constitute a qualifying trigger; and whether the victim’s claims of promiscuity be taken seriously. Apparently, it would be flying in the face of reason to deem an intentional falsehood as a qualifying trigger. However, a truthful statement would have to be treated differently. 18 As such, there is considerable difficulty and ambiguity involved in determining what constitutes a qualifying trigger for loss of control. The Coroners and Justice Act 2009 stipulates the requirements for establishing loss of control. In R v Clinton, the Court of Appeal examined various features of this case.19 This was due to the fact that it was hearing a defence of loss of control for the very first time. In this case, Clinton and his wife were under a trial separation, when she described in lurid detail, her sexual escapades with other men. This resulted in an argument where tempers were lost, and the wife suggested to the defendant that it would be far simpler if he would commit suicide. She also mocked him regarding his previous unsuccessful attempts at killing himself. 20 This infuriated Clinton no end, and he killed her in a spasm of uncontrollable fury. In addition to the sexual infidelity aspect of this terrible incident, there were other catalysing factors. The verbal taunts of the victim were contended by the defendant to be sufficient for establishing a defence of loss of control. This was not accepted by the trial judge, who was principally seized with the presence of sexual infidelity, and who withdrew the defence of loss of control from the jury. This was deemed incorrect by the Court of Appeal, as the sexual infidelity was accompanied by other circumstances that could collectively be considered a qualifying trigger. 21 The sexual infidelity in combination with the extremely provocative taunts of the victim had generated to a justifiable sense of having been grievously wronged in the defendant. From this perspective, the Appellate Court, opined that the jury should have been directed to consider what another person of the defendant’s age, gender and other similar attributes, would have done..22 The difficulty associated with this ruling is that the circumstances under which the killing transpired were extremely heated. This is common to most of the cases involving killing and there is considerable difficulty in establishing the exact event that had brought about the violent act. 23 Consequently, the murder conviction of the defendant was annulled and a retrial ordered Another problem with this decision lies in the fact that the jury would find it unnatural, at the time of considering the partial defence, to ignore the infidelity of the victim during some stages of their deliberations, while admitting such infidelity at other stages.24 This situation is worsened, when other defences are also to be taken into account.. Accordingly, Section 54(2) of the Coroners and Justice Act 2009 has expunged the requirement of immediacy. This requirement had been central to common law definition of provocation, which emerged from the ruling in R v Duffy.25 The court, in this case, had considered immediacy central to the defence of provocation. 26 The trial judge had directed the jury with the statement that provocation could be described as an act or sequence of acts that the deceased had done to the accused, which would have made any reasonable person to undergo a sudden and temporary loss of self – control. At the time of assessing the presence or otherwise of provocation, the law takes cognisance of the following features; first, whether there had been sufficient time for the passion to reduce and reason to regain control; second, whether the retaliation against the provocation was reasonable and commensurate to the latter.27 Two major difficulties came to the fore with the decision in R v Duffy. The first of these was whether it was correct to interpret the common law in this manner. The other related to the exclusion of women who killed abusive husbands in self – defence, self – preservation, or out of fear, where some time had elapsed, was patently discriminatory against such women. 28 The immediacy condition imposed by the trial judge in R v Duffy, proved to be dilemmatic. However, the rulings in subsequent cases came to terms with this inequitable decision, and from this, there emerged certain conditions for rendering a defendant eligible to adopt a defence of provocation. In R v Ahluwalia29 and R v Thornton,30 it had been contended that the immediacy requirement did not constitute a rule of law. It was also argued that this requirement had emerged from the decision in Duffy. 31 In both these cases, the court relied on the precedent set in Duffy, and rejected the contention of the defence. In fact, in R v Thornton, the presiding judge even went to the extent of stating that there was no sudden and temporary loss of self – control, which was the sine qua non for provocation. 32 Moreover, Section 52(1) of the Coroners and Justice Act 2009 enjoins that the defendant should have been suffering from defective mental functioning, on account of a medical condition, and that such impairment should have significantly affected the capacity of the defendant to exercise self – control. 33 A crucial issue that has to be addressed relates to whether this new Act provides a better defence to battered women. To some extent, although to a much lesser degree, the previous impediments to a battered woman to present a defence of loss of self – control, persist. It is for the jury to comprehend that a battered woman is reasonably justified to fear for her life, even in instances where the violence is not life threatening. 34 The defence of provocation, prior to the enactment of the Homicide Act 1957,35 was capable of being withdrawn by a court if it perceived that a reasonable man would not have acted as the defendant had done. This ancient state of affairs has been inadvertently restored by the Government. Thus, the decision in R v Holley,36 successfully overturned the case law that had been meticulously developed over a decade, in the area of the characteristics that could be attributed to the so called reasonable man. 37 Thus, a fixed capacity for self – control became the norm, and this supplanted the previous variable standard, which had been enforced with the decision in R v Smith.38 The decision in R v Holley was significant, as it restored a defence that was circumscribed by the literal meaning of the Homicide Act 1957, which left no room for interpretation. Moreover, this decision deprived battered women of the defence of provocation. However, this defence was made available to individuals who had no control over their temper as long as these persons could claim wrongdoing or the perception of injustice. 39 This was patently unjust and served to increase the desperation of the law to undergo the urgently required reform. However, the new qualifying triggers defined in the Coroners and Justice Act 2009, have not been subjected to a thorough test. Consequently, an assessment of the capacity of this new Act to justice while taking into account human frailties has to be undertaken by perusing the previous case law.40 Moreover, Section 55(4) of the 2009 Act specifies the term extremely grave character with regard to the provocation. The meaning of this term is certain to vary with the culture and experience of the defendant.41 There are no guidelines regarding the situations that this term is to encompass, which makes it very difficult for the judge to provide adequate direction to the jury. As such, in R v Clinton, the defendant additionally submitted the defence of diminished responsibility. In such cases, the jury stands to be confused considerably. This Coroners and Justice Act 2009 was aimed at simplifying the law on partial defences to murder; however, this commendable objective has not been achieved. Despite the changes made in the area of defence the loss of control in the Coroners and Justice Act 2009, cannot accord justice to the vulnerable parties on all occasions. As per the above discussion, it can be concluded that the defence of loss of control in this Act, which replaced the previous defence of provocation, does not provide a greater degree of justice. This is due to the fact that several conditions have to be complied with, in order to prove loss of control. Bibliography — — ‘Relevance of sexual infidelity of victim in defence to murder’ The Times (London, 30 January 2012) 49 Attorney General for Jersey v Holley [2005] 3 WLR 29 Clough A, ‘Loss of Self – control as a Defence: The Key to Replacing Provocation’ (2010) 74(2) JCL 118 — — ‘Sexual Infidelity: The Exclusion that never was?’ (2012) 76 JCL 382 Coroners and Justice Act 2009 Edwards SSM, ‘Anger and Fear as Justifiable Preludes for Loss of Self-Control’ (2010) 74(3) JCL 223 Gibb F, ‘Killers can use crime of passion defence, jurors told’ The Times (London, 18 January 2012) 9 Homicide Act 1957 Monaghan N, Criminal Law Directions (2nd edn, Oxford University Press 2012) Norrie A, ‘The Coroners and Justice Act 2009 – Partial Defences to Murder (1) Loss of Control’ (2010) 4 Crim LR 275 R v Ahluwalia [1992] 4 All ER 889 R v Clinton (Jon – Jacques) [2012] EWCA Crim 2 R v Duffy (1949) 1 AER 932 R v Thornton [1996] 1 WLR 1174 Stark F, ‘Killing the Unfaithful’ (2012) 71(2) CLJ 260 Read More