Analysis and Evaluation of Defenses of Self-control - Essay Example

Law: Analysis and evaluation of defenses of self control Introduction In criminal justice, the law provides both the plaintiff and the defendant with some provisions which they can use to argue their cases. For a plaintiff to successfully win a case leveled against the defendant, he must provide enough evidence as stipulated in order for the judges and jury to make a fair judgment. It is not obvious that one can easily level a law suit against another person and easily win the case. The plaintiff must go extra miles to gather evidence which are beyond reasonable doubt and lay them before the jury to get his justice (Morgan 2013; p. 124).The defendant on the other hand is protected by some sections of the law in that several provisions have been included into the law which enables him to argue the case against him. There are so many defenses available to the defendants in every aspect of criminal justice. Therefore, is up to the defendants to analyze the case facing him and choose the best defense which is found in the law to argue and dismiss the case (Norie 2010; p. 1). There are so many cases where the defendants have successfully defended themselves and were acquitted. Thus, as the plaintiff struggle to gather evidence to come up with a valid case, the defendant should also find good defenses which can neutralize the case. 1.Defense of provocation One of the common defenses that have existed in law is provocative defense. In the defense of provocation, an individual is not criminally responsible for an assault he has committed upon an individual which gives the person for provocation for the assault if the individuals is deprived of provocation power of self control (Morgan 2013; p. 123). In a situation where action or insult likely deprived an ordinary individual of the power of self control and induced this ordinary person to commit assault, then the accused would not held responsible for the act he committed. In other words, an individual accused of committing a certain assault or even murder had a chance to defend himself against the case by proving to the jury that he was provoked by the plaintiff to commit the assault or murder (Norie 2010; p. 1). This defense has been in existence for almost a century until recently when most nations altered it. Some nations have done away with it while others like the UK, US and Australia have adjusted it (Clough 2010; p. 119). In English law, provocation was a defense used by the defendant claiming that they had a total loss of control as a response to another individual’s provocative behaviors which was enough to act the way they acted. Provocative defense applied on murder cases and sexual offenses not any other offences. The reason for changing or adjusting is that most defendants escaped the punishment on the wrongs they committed but would have controlled themselves from acting. On 4th October, 2010, the English law abolished the controversial partial defense of provocation and had to introduce a new partial defense of loss of control (Gibbon 2013: p. 280). This new defense was put in section 54 of the coroners and justice Act 2009. This new partial law of defense was adopted to enable the law of homicide in England and Wales to better take care of the unique circumstances within which battered women kill as they provide a provision that tend to exclude defendants who commit murder to the intimate partner as a result of the alleged sexual infidelity. The defense of provocation has always been in English law as recognition of human weaknesses (Clough 2010; p. 119). This is because every individual to some extent can be emotional as a result of certain situation and these emotional moods can drive one to commit an offense such as assault or murder (Gibbon 2013: p. 280).This defense has had different changes and interpretations in that the defense seen in the modern day courts reveals some aspects that are outdated. There has been always proposal and criticism on whether standard of reasonableness or cumulative provocation should be accepted to make this defense applicable to women who are the victims of violence (Norie 2010; p. 1). Therefore, the law commission has recently focused much on this part of the law as it suggest some radical changes that concerns both the defense of murder and the structure of the homicide. 2.Loss of self-control The coroners’ justice Act 2009 has three essential components to the English loss of control defense. The first is states that the defendant has to prove that the offense he/she committed resulted from his loss of self-control; however this loss of control should not be sudden, moreover this defense won’t be considered by the jury if it is known that the defendant acted because of revenge (Morgan 2013; p. 123).Secondly, the loss of control must be attributable to at least one of the two qualifying triggers or even the combination of both (Wake 2013; p.435). Then the third components requires the judges to determine whether the defendant sex and age with normal degree of tolerance and even self-restraint. Thus, let us focus in detail on these three components suggested in the coroners and justice Act 2009. On 4th of October 2010, section 52 -56 of the coroners and justice Act 2009 was adopted to replace the provisions of the provocative defense. These sections of the law significantly impacted ion on the defenses of murder. The sections clarified the defense of the diminishing responsibility and abolished the common law provision of defense of provocation (Clough 2010; p. 119). This was replaced with the defense of loss of self-control. In its first report, the law commission stated that there were significant problems with defense of provocation since it did appear to be underpinned by any particular and clear rationale. Moreover, the concept of loss of self control had become very problematic (Baker& Zhao 2015; p. 11). This compelled the law commission to suggest that the defense of provocation had to be redefined to gross provocation. This commission also proposed that the defense of diminished responsibility ought to be revised to suit the modern situations since it was not reconcilable with the modern day medical definition hence, it required improvement. Focusing on the diminished responsibility, section 52 of this Act improved the definition that was provided by section 2 of the Homicide Act of 1957 (Clough 2010; p. 119). Thus, the new definition of this defense included the abnormality as a requirement which may emerge from a recognized medical condition and allowing more facts to be attached to the expert witness testimony probably of the medical professional in ascertaining whether the accused can come up with a rational thinking or exercise self-control (Wake 2013; p. 435). This development was much welcomed since the previous provision had stirred much confusion. This new adjustment was consistent with the decision on R v. Dietschmann case. Many people criticized the partial defense since it primarily aimed at the loss of self control requirement which was known to favor men than women and hence outdated. The coroners and justice Act 2009 boost this concept into a fully fletched partial defense basing on two qualifying triggers. They include “justifiable sense of being seriously wronged and “fear of serious violence.” (Baker& Zhao 2015; p. 20). In the previous provocation defense, the defendant could lose their self control according to the things done or said. Later the law demanded that the victim should be blamed for the defendant’s loss of control or even that he was the cause of the action. However, in the modern law under the loss of self control defense, the defendant is required to show that he had lost self control which resulted to the qualifying the trigger (Gibbon 2013: p. 280).He should prove to the jury that the emotional situation that he/she was undergoing at that moment could lead any individuals of his age and sex having the normal degree of tolerance and self restraint to react the way he/she reacted. 3.Qualifying the trigger Under the provocation defense, any action was capable of being employed an evidence of provocation. This seemed to be problematic because it was too wide. This provocative defense did not have to be intentional directed at the individual. As evinced in h case R v Davies where the father killed a crying baby, the jury determined that the crying baby provoked his father to commit an offense (Baker& Zhao 2015; p. 23). However, the adoption of qualifying triggers has streamed line the new defense greatly. Despite of the strict words used to establish a qualifying trigger , section 55(60 of the coroners and justice Act of 2009 has two more limits as what things that should be categorized as qualifying trigger (Wake 2013; p. 435). These limits are section 55 (6) (a) which states that a thing done or said by the defendant constituted sexual infidelity is to be disregarded (Baker& Zhao 2015; p. 23). The second limit is section 55(6)(b) which states that an individual may not raise a qualifying trigger if the thing done was incited, said or done violently. The limitation that I based on sexual infidelity represents a major change from the provocation defense which was taken as an excuse of crimes of passion. a) Fear of serious violence trigger The defense of loss of self control has been constrained to a state of anger and rage which the law commission stated that such a situation elevates the emotion of sudden anger to supersede the emotions of fear, compassion, despair and empathy. Some scholars have called this situation as the “loss of self-control dilemma.” This is because the concept was limited to men violence reaction to provocation (Clough 2010; p. 121). This excluded female reaction to fear and despair. Section 55(3) of the Coroners and justice Act of 2009 tend to define the term qualifying the trigger as the loss of self-control as a result of the defendant’s fear of serious violence from the plaintiff against the defendant or another individual who was around at the time of the event (Gibbon 2013: p. 280). This is a new basis on which the partial defense can be determine if it holds to defend the murder case and enables the defendant who is likely to fail in convincing the jury under self-defense since they acted irrationally to the threat from the victim (Wake 2013; p. 435). Thus, according to the law commission recommendation of the report of 2006, murder, manslaughter and infanticide, it was concluded that the new law would cover two situations. First, defense applies where the victim kills the abuser to prevent an attack which is anticipated but not imminent (Clough 2010; p. 119). Secondly, this new law applies where individual overreacts to a situation that seems to be imminent threat Thus, emotion is considered when deciding homicide cases other than anger. This means that the defendant should show to the jury that he acted out of sudden emotions according to the prevailing circumstance but not anger. When the jury ascertains that he acted due to anger, then the defendant’s plea fails. b) Justifiable sense of being wronged This is the second trigger embedded in section 55(4) of the new Act. This provision states that the defendant’s self control can be associated to the things said or done (McAvney 2012; p.1). The things said and done both led to the circumstance of an extreme grave character which compelled the accused to react in a sense of being seriously wronged. The terms “extremely grave character” and “justifiable sense of being wronged” are a bit troubling (Wake 2013; p. 435). Basing on these facts, some cases such as the Doughty case of 1986 where a crying baby was killed by his father would not be covered by this defense. In the old law of provocation, the action of this father could be taken as “extremely grave matter in line of his religion and culture hence a justifiable sense of being wronged. In other words, the new provision in the coroners and justice Act of 2009 section 54(2), states that, there is no requirement that the loss of control be sudden. This is the difference it makes with the old law of provocation which required that the loss of control should be sudden and temporary as judged in R v. Duffy case of 1949 (Wake 2013; p. 439). This was a big barrier to the victims of domestic violence (Clough 2010; p. 119). This situation was also seen in R v. Ahluwalia (1992) case and R v. Thornton of (1996). However, all of these cas4s had no loss of control, sudden anger hence these case would have the same outcome were it that they were decided under the new provision (Wake 2013; p. 435). In a case such as R V. Inbrams &Gregory of (1982), the defense acted in a desire to take revenge hence, the jury could not rely on the defense. The loss of control defense has given the allowance to the emotion other than anger. And this is highly welcomed by law scholars since it would have to cover several cases that proved to be hard to judge Wake, N. (2013). Given the fact that the fear of serious violence to qualifying the trigger be retained in the new law, the element of loss of self control should be done away with so that the battered women can be protected as well (Wake 2013; p. 435). This means that the justifiable sense of being wronged ought to be abolished from this new provision of the partial self-defense. 4.The normal degree of tolerance and self-restraint The law refers to the normal degree of tolerance and self restraint to prevent the defendant from using the defense of loss of self-control to evade the punishment for the offense he committed because of his intolerance and low self-restraints (McAvney 2012; p.1). In a case where the individual with normal powers of tolerance and self-restraint would not have responded to the qualifying trigger by killing the victim then the defendant cannot use this defense to defend himself (Herring 2014; p. 250). In such a situation, the test tends to operate in a strict sense. Even if in the situation where the defendant has lower levels of self restraint and tolerance, he is still required to show to the jury the levels of tolerance and restraint of an ordinary individual who is of his age and sex. This kind of defendant would better off relying on the on the defense of diminished responsibility (Fitz-Gibbon 2013; p. 3 03). In other words, it implies that only age and sex can be employed to impact upon the degree of self restraint or the expected tolerance (Gibbon 2013: p. 280). In other terms, the reference to tolerance has been designed to handle the cases where the defendant regards actions to be particularly provocative due to his intolerant belief. In reference to self-restraint, it means that the law requires that individuals to show self-control. Even if the plaintiff is very insulting, the defendant is required to show self-restraint to avoid bigger offenses such as murder and assault (Clough 2010; p. 122). However, the law acknowledges that some situations may arise and push the defendant to the wall until he goes beyond the threshold capacity for elf restraint and force him to do something awful which an ordinary individual would not have done (Herring 2014; p. 250). The main task for the defendant here is that he has the responsibility of proving to the court that any normal individual could have reacted to the extent he did in the situation (Gibbon 2013: p. 280). In a case where the jury is unable to establish how a normal person would have responded to the situation the way the defendant did, they would allow the defendant to use it as a defense against the case leveled against him (Wake 2013; p. 435). Section 54 (1) (c) shows clearly that the defendant’s age is a great factor that would help in determining how much tolerance and self restraint can expected of him (Clough 2010; p. 123). The sex factor in the section seems to be odd; this factor implies that men and women tend to exhibit different degree of tolerance and self restraint (Herring 2014; p. 250). It is obvious a given action might appear graver for a man than a woman and vice versa hence there is no reason why the level of tolerance or self-restraint should be different. In reference to the R v. Clinton (2012), sexual infidelity may be considered when examining at the situation that under section 54(1) (C) in an appropriate case. Initially, the defense of provocation demanded some degree of proportionality test in that the judges were required to scrutinize the magnitude of provocation to decide if the reasonable man would act the way the defendant reacted. However, in the new defense of loss of control there no such balancing exercises (Wake 2013; p. 445). The magnitude of the provocation is assessed at a stage two and it has to meet the specified threshold of the fear of serious violence Section 655(3) and extreme grave offense or seriously wronged Section 55(4). In this situation, there is no requirement that is weighted against the conduct of the defendant. The law commission proposed that in the new law, the structure of the homicide offenses in England and Wales should be reformed to have first and second degree or murder. This system would resemble that of the United States jurisdiction Wake, N. (2013). The law commission suggested that the first degree murder should consist of two offenses the intention killing and the intention of doing serious injury in a situation where the defendant new very well that the action he was going to do was quite risky and may cause death. Defendants who are convicted over this offense would receive mandatory life sentence (Fitz-Gibbon 2013; p. 303). However, the second degree of murder and manslaughter are taken to maximum life sentence. In this proposal, there was a provision that stated that in a case where the defendant is able to successfully argue partial defense of provocation, they would be convicted of the second degree of murder other than manslaughter (Fitz-Gibbon 2013; p. 303). This allowed intent of the awful action to be adequately recognized but the mandatory life sentence evaded. Bibliography Baker, D & Zhao, L. (2015). Contributory qualifying and non-qualifying triggers in the loss of control defense: A wrong turn on sexual infidelity. Accessed on 15th May 2015. Retrieved from http://clj.sagepub.com/content/76/3/254.short?rss=1&ssource=mfr Clough, A 2010, Loss of Self-control as a Defense: The Key to Replacing Provocation, Journal Of Criminal Law, 74, 2, pp. 118-126, viewed 5 May 2015 Edward, S. 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