The Defence of Loss of Control: Evaluating the Arguments Presented by Norrie - Coursework Example

THE DEFENCE OF LOSS OF CONTROL: EVALUATING THE ARGUMENTS PRESENTED BY NORRIE 10th May Introduction In his article ‘The coroners and Justice Act 2009 – partial defences to murder (1) Loss of control’ Norrie discussed the shift from reliance on the defence of ‘provocation’ to ‘loss of control’.1 In reviewing Norrie’s article, the present document presents a brief discussion of the key arguments that the writer presented, alongside an evaluation of the level of persuasiveness with which he pushes his argument. The article under review is founded upon the then newly enacted Coroners and Justice Act (2009) which sought to make a number of changes to the existing legislation on certain criminal justice matters. However, this review only considers the replacement of the defence of provocation and its replacement with that of loss of control, in adherence to Norrie’s article. Background to Norrie’s Article In explaining the factors that occasioned the review of the law as discussed above, Norrie portrayed a scenario indicating that there was a growing discontentment with the way courts were irregularly handling matters of ‘murder’, especially within the family setting.2 Anticipating the already enacted changes, Dyer described the law on provocation as a ‘mess’, citing inconsistency and awkward leniency.3 Both Norrie and Dyer were referring to the contrasting judgements issued in Attorney General of Jersey v Holley (2005) and R v Smith (2000). In AG of Jersey v Holley (2005), the defendant was sentenced to death for killing his partner, a ruling that was later overturned at the Court of Appeal, replacing the sentence with a manslaughter verdict. The latter decision was however overturned by the Privy Council in a majority decision, returning the initial sentence of death penalty and quashing reliance on personal attributes (except age and gender) as reasonable basis to apply provocation as a valid defence.4 In the case of R v Smith (2000), the defendant was an alcoholic who had stabbed his drinking partner to death following accusations of theft of some tools. The defendant relied upon the defences of provocation and diminished responsibility owing to his severe depressive state. The court returned a death verdict, but the verdict was overturned by the Court of Appeal. Upon further appeal by the prosecution, the House of Lords gave in to the argument supporting reliance on certain personal characteristics (in the case, depression), and supported a manslaughter verdict.56 Clearly, the two cases appear to have exploited all avenues available to them. However, the highest judgement-making organs referred to returned different verdicts in fairly similar circumstances. Furthermore, a review of the path to which the final verdict was issued shows inconsistent rulings from various courts, suggesting incoherence in the law governing the defence of provocation. Citing specific instances, the courts of original reference were particularly consistent in issuing death penalties in the two cases. Similarly, the Court of Appeal consistently returned a verdict of manslaughter for both cases. Further reference to the House of Lords and the Privy Council saw support for manslaughter and death respectively, with a one-third dissent from the Council’s nine-judge bench.7 Despite the precedent set in R v Smith (2000), the lower court appeared unpersuaded by the final outcome of the case, and abdicated the requirement to follow through. Based on these inconsistencies, arising from the flawed nature of the legal framework governing the issue of provocation, the Law Commission set to harmonise the law with reference to critical matters raised during the series of judgements and the ensuing debates that often attracted outrage.8 In this respect, the Law Commission made proposals for amendment with the omission of the term provocation, indirectly replacing it with ‘loss of control’ as a more accommodating and lesser trivial defence to the charge of murder.910 It is these changes that Norrie sought to discuss, referring to both the old and new laws enacted through the Coroners and Justice Act 2009. Key Arguments Raised by Norrie and Persuasiveness of His Arguments for the Defence of Loss of Control Norrie made interesting arguments, with heavy reliance on the cases that had already been determined, since the time of publication did not coincide with any cases determined using the then newly enacted Coroners and Justice Act 2009. He advanced several important arguments that revolved around the facts that necessitated the change, and how the judgements based on the new Act would reform judges, prosecutions and defences’ approach to matters of murder due to perceived loss of control. The key arguments are summarised below. Revenge/ Premeditated Anger versus Instant Reaction One of the important arguments that Norrie raises is based on whether the defence or prosecution can rely on the ‘manner of reaction’ to show that they have a point for the judges’ consideration. This determination is characteristically framed as the ability to show or disapprove that there was loss of control. Important as it is, this argument raises serious questions regarding whether the defendant/ accused could have had the time to premeditate their actions, specifically based on the events preceding and surrounding the present case. Norrie wrote: ‘The problem is that a person should be able to claim the defence who has acted out of a justifiable sense of being seriously wronged, in response to a grave provocation, but not in a situation where they converted their justifiable anger into a cold calculation for revenge.’11 To capture the series of events leading up to the fatal action committed by the defendant, Norrie advanced his comments on this argument with the Commission’s reinforced requirement for proof of ‘extreme emotional disturbance’ and ‘immediacy’; both requirements being considered concurrently and not in exclusion of each other. In Norrie’s article, this argument captured important aspects of the changes occasioned by the Coroners and Justice Act 2009. Unlike the partially argued defence of diminished responsibility, the Act captures a significant section of the argument on premeditated anger. The two requirements for identifying an action as either of premeditated or an act of revenge, immediacy and extreme emotional disturbance comprise the basis for the argument. The argument captured the spirit of the law as contained in the Act, and as demonstrated in the case R v. Clinton (2012). In the mentioned case, the defendant was wronged by the acts of his wife, a factor that informed the Court of Appeal to quash his murder conviction from a lower court.12 Similarly, dismissal of the application for loss of control in R v. Hatter (2013) was refused on grounds that the appellant had premeditated his actions.13 Diminished Responsibility in Determination of Capacity for Self Control Diminished responsibility is argued as a factor of the defendant’s age and sex; implying that age and sex affect self-control. Norrie delved into the role played by diminished responsibility, and how the Law Commission intended to go round the issue. In one hand, he points out that, yes, certain factors previously considered as material to a defendant’s responsibility in murder were outright contestable – for instance, he pointed out that in the case of Smith v. Morgan (2000), highlighting the complications in admitting personal characteristics as an supporting evidence to the defence of diminished responsibility.14 Indeed, the inclusion of personal characteristics is a controversial subject, with some authors, as Norrie noted, writing that persons of unequal mental capacities do not have equal abilities to regulate (control) themselves. Another side to this argument is the role of age and gender in deciding vulnerability of the defendant. Norrie noted that the Law Commission, in drafting this enhancement to the defence, intended to provide an overall overview of how persons of different ages should be regarded before the law. For instance, he highlighted a possible comparison between a twelve year old and a more mature person, noting that the treatment should reflect the age dimension. However, interestingly, Norrie compared the differences in maturity between persons of the same age. He noted that some considerably underage individuals have a significantly higher maturity than others who would be regarded mature by their age. In seeking a balance between age and maturity, Norrie adopted the view of the Law Commission, that persons of the same age should be treated equally before the law, regardless of their seeming maturity levels. According to the argument, delving into differences in maturity while delinking the same from age would be tantamount to allowing back the acceptance of personal characteristics as a basis for admitting personal characteristics as a defence for loss of self-control. He, however, admitted that gender remained unclear as a means to argue this defence, since the Law Commission had yet to provide a legal basis for its inclusion in the reformed Act. Norrie tackled this defence inconclusively. The defence of diminished responsibility does not only apply to the circumstances that the author alluded to; rather, it covers all other aspects that could influence an individual’s character. For instance, the claim of insanity, though independently considered in law (under sections 4 and 4A of the Criminal Procedure (Insanity) Act of 1964) is an unpassable case in the defence for loss of control.15 Consequently, the court has the obligation to ascertain whether an accused was insane at the time of the act, which has direct effect on their competence to stand trial. Despite this matter failing to be brought up in the recommendations by the Law Commission, failing to take into consideration such an important dimension implies that the argument is inconclusive. In fact, it can be termed as partial, since it only considers cases where the accused is competent to stand trial, blinding the reader with a one-sided argument. Further, Norrie failed to expound on the notion of diminished responsibility by highlighting ‘wilful intoxication’ as an avenue for denial of the defence of insanity. He touched on cases that dwelt on intoxication as the basis for granting of the defence of diminished responsibility, but failed to offer the guiding principles behind the view reinforced by the law. The importance of this defence and how it could alter the course of a case was captured by Herring, who noted: ‘He was not allowed to plead insanity because it was his voluntary intoxication, rather than any disease of the mind…If, however, a defendant can show that although intoxicated it was his or her disease of the mind that caused his or her lack of awareness then insanity may be available.’16 The author was referring to the case of R. v. Lipman, in which the defendant had wilfully taken an intoxicant which caused him a hallucination, he attacked his colleague thinking he was a monster only to recover and find who he killed was actually the colleague.17 Clearly, Norrie failed to incorporate important views on this defence, thereby failing to persuade a knowledgeable reader that his argument is balanced, as would be the case for an objectively presented review. This discussion appears to have been left ‘hanging’, as Norrie did not offer a definitive end to the debate he started. Despite appearing to favour exclusion of personal characteristics as a form of support for diminished responsibility, Norrie did not offer any guidance on the role of gender in reinforcing it as a legitimate feature for consideration in justifying (or nullifying) loss of control as a defence. Overreaction and Improper Pre-emption The question of application of the defence of loss of control is clearly an important one, bearing in mind admission of the same could convert a murder charge into one of manslaughter, as happened in AG of Jersey v Holley (2005) where the defendant was charged with manslaughter after the Court of Appeal overturned an earlier ruling. Norrie approached this issue from the position of a woman who frequently suffers domestic abuse. He acknowledged that, under the old law, such a woman would just have to rely on the defence of provocation, which was extensively difficult to admit since many such cases see the situation grow with time, pre-empting the basic requirement of ‘immediacy’ of the reaction. According to the author, this has been taken care of through the inclusion of ‘fear’ as a trigger factor for committing an undesirable act such as murder. For instance, a woman who constantly endures violence may now cite fear as the trigger for her actions, insinuating her fear for serious violence as the fear factor. With this comes the notion of overreaction. Norrie noted that in order for overreaction to be determined to have occurred, the defence should show that the defendant used proportionate force in countering the perceived threat to their lives.18 He argued for the inclusion of anger in cases of domestic violence; an anger that builds up over time due to perceived lack of helplessness. Such helplessness builds from character-targeted abuse, such as being ‘painted’ a weak spouse, unable to fulfil her marital obligations, or such other personal attributes. Norrie termed this as systematic abuse that eventually wears down an individual’s ability to exercise self-restraint and normal tolerance.19 This was not possible under the old law, since a characteristic ‘final’ act of provocation was always required to qualify the accused’s assertion. The notion of overreaction appears weakened by this new dimension of law, a fact that Norrie indirectly alludes to. While the argument on overreaction would appear common, Norrie’s emphasis on the fear of violence as a qualifying trigger for reaction offers a refreshing look into how the Law Commission intended to bridge the gap in permitting accrued effects of abuse to form a basis for the defence of loss of control without violating the requirement to prove immediacy. The distinction drawn in the argument is persuasively convincing and adequate in explaining this defence. Power of the Judge and Jury Referring to the Coroners and Justice Act 2009, Norrie was of the opinion that the role of the judge in determining the direction of a case was better enhanced by introducing clauses that delimited their abilities to dispense of a judgement. He indicated that under the old law, the judge was not provided a guide as to what good or bad acts comprised, meaning it was equally difficult to make a conclusive comment on the same. This could be attributed to the series of counter judgements given by different courts over the same matter. In other words, the matter was simply left to the presiding jury to decide what they deemed morally right and morally bidding in their own fair assessment, leaving an enormous room for error and incoherent judgements. The jury, persuaded by individuals’ views and understanding, could hardly make a unanimous decision, a requisite to showing that the law is properly streamlined.20 However, the situation was changed in the new law, with judges getting the power to make specific recommendations to the jury. The judge can now assess the event based on the legitimacy of the claim. Norrie noted: To strengthen the legitimacy of provocation claims, the Law Commission stipulated that provocation should be gross and cause a ‘justifiable’ sense of being seriously wronged.21 Norrie’s argument regarding change in position from relying on the jury to reverting to the opinion of the judge is founded on the Act’s provisions. This argument was further extended to matters of infidelity, where the vice is delinked from justifiable reasons that can cause loss of control.22 Through this approach, Norrie succeeded in persuading readers that the Act as then enacted offered adequate guidance to the judge, giving them the basis to make more consistent judgements. The judge in R v. Dawes (2013) followed through with the new provisions of the Act and did not leave the decision on whether there was loss of control to the jury, citing lack of the same in the presentations made to him.23 Conclusion Norrie captured many important aspects of the Coroners and Justice Act 2009. His views appeared limited to just the provisions of the Act, taking a shallow review of how the provisions intermarry with other laws. This weakened his argument on diminished responsibility as a reinforcement for the defence of loss of control, despite persuasively arguing for ‘the increased power of the judge and the jury’, ‘overreaction and improper pre-emptiness’, and ‘premeditated anger/ revenge’. Thus, the argument was partially persuasive, providing important arguments for the inclusion of certain various components of the defence of loss of control, and presenting the effects of the law both before and after the enactment of the Act. Bibliography Alan Norrie, ‘The Coroners and Justice Act 2009 – partial defences to murder (1) Loss of control’ (2010) (4) 275-289. British and Irish Legal Information Institute, England and Wales Court of Appeal (Criminal Division) decisions - Dawes and Ors v R [2013] EWCA Crim 322 (26 March 2013) (Online http://www.bailii.org/ew/cases/EWCA/Crim/2013/322.html 2014). Carrie-Ann Blockley, ‘The Coroners and Justice Act 2009: ‘(a)mending’ the law on provocation?’ (2014) 1 Plymouth Law and Criminal Justice Review 138. Clare Dyer, ‘Privy council overrules Lords to put judgement back on track’ (Online http://www.theguardian.com/uk/2006/jan/30/ukcrime.law 30th January 2006) The Guardian. Claudia Carr and Maureen Johnson, Beginning criminal law (beginning the law) (Routledge 2013). E-law Resources, The defence of loss of control – voluntary manslaughter (2013 Online http://e-lawresources.co.uk/Loss-of-control.php). Jonathan Herring, Criminal law: text, cases, and materials 5th Edition (Oxford University Press 2012). Law Weblog, Sixth form law: cases – murder – defences – provocation (2008 Online: http://sixthformlaw.info/02_cases/mod3a/cases_34_vol_provocation.htm). Robert Sullivan, ‘R. v. Lipman and the defence of intoxication’ (1970) 4(1) The Law Teacher 9. Sam Main, ‘Loss of control: sexual infidelity and the reduction of a charge of murder to manslaughter’ (2014) (5) The Student Journal of Law 2. U.K. Parliament, Judgements – Regina v Smith (on appeal from the Court of Appeal (Criminal Division)) (2014 Online http://www.publications.parliament.uk/pa/ld199900/ldjudgmt/jd000727/smith-1.htm). Read More