The Coroners and Justice Act 2009 - Essay Example

This essay will analyze the changes made to the two defenses to murder mentioned above and discuss if the change provided an improvement to the existing law.
The first change to the old defense of provocation was that the old law required a sudden and temporary loss of self-control, whereas the Coroner’s and Justice Act 2009 requires that, although the defendant must have self-control, the self-control need not be sudden (S54(2)). This subjective test is a test for the actual self-control that caused the altercation. The old law was called the Duffy test, and its main problem was the time gap between the provocation and the murder that occurred. This means that, in cases where there existed a battered women syndrome; the accused might lose self-control via a slow process, as opposed to immediate loss of control.

From this, it is evident that the old law tried to exclude premeditated murder, and the new law still tries to do this by mentioning that the defendant is not protected in cases of a premeditated desire for revenge (S54(4)). The improvement on the old law made by this amendment was that the triggers are seen to have caused the loss of self-control. The old law was seen to be gender biased since men tend to lose control faster than women, and the law was meant to give women a defense in case of battered woman syndrome.

The second subjective test concerns the cause of self-control, where Section 3 of the Homicide Act of 1957 required that the cause of loss of self-control could be anything said or done. In this case, there were no limits to the causes of loss of self-control, and a defendant could plead an irrelevant cause of loss of self-control. However, Section 55 of the Coroners and Justice Act 2009 states that there must be a qualifying trigger for the loss of self-control experienced by the defendant. For example, Section 55(3) states that one person could have a serious fear of violence from the other party, which could qualify to give the defendant a partial defense to murder or manslaughter.

Section 55(4) also states that there could be things said or done that cause a sense of grievance to the defendant and constitute a feeling of serious wrong. However, other sections indicate that sexual infidelity is no longer a trigger for violence (S55 (6)). Analysis indicates that there was little change in this section since the old law indicates that a reasonable person would have lost self-control and done the same thing. Characteristics that could be taken into account in the old law included a defense of mental illness, where the defendant is not deemed a normal person. The second approach indicates the test as when an ordinary person with ordinary powers of self-control would do the same thing. This approach was used in the Holley case, where only age and gender can be taken as a reasonable trigger. Under the new law, mental illness is ignored, and only age and gender can be used as a defense. This law was meant to reduce the defense of diminished responsibility due to mental illness.

The last change is that, in the old law, the judge had the option of withdrawing the defense in a bid to give room for sympathy to the defendant. However, in the new law, the judge must be reasonably satisfied that there is enough evidence available to the jury, so the judge could withdraw the defense from the jury.

Finally, diminished responsibility, as set out by S. 2(1) of the old law has been modified by Section 52 of the Coroners and Justice Act 2009. In this case, the abnormality of the mind in Section 2 of the Homicide Act 1957 has been modified to become an abnormality of mental functioning in Section 52 of the Coroners and Justice Act 2009. Read More