Loss of Self Control Essay Question PDF

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Essay on Loss of Self Control...

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This essay intends to argue that the partial defence of Loss of Self Control provides no significant improvement from the previous defence of Provocation. It does not remedy the law inadequacy regarding Sexual Infidelity as it remains a qualifying trigger indirectly. Women who kill their abusive partners are still largely unable to rely on the defence despite removing the ‘sudden and temporary’ requirement.

Loss of Self Defence is a partial defence to murder. It can reduce a murder conviction to one of voluntary manslaughter. Section 54 & 55 Coroners and Justice Act 2009 set out the requirements of the defence. It must be shown that D lost self-control. That the loss of self-control was the result of a qualifying trigger. And finally, that a person of his age and sex with normal capacity for tolerance and self-restraint would have killed in such circumstances. This defence replaced Provocation in an attempt to remedy its shortcomings by reforming the law to be in line with the recommendations made by the Law Commission in its 2006 ‘Murder, Manslaughter and Infanticide’ report. Provocation is an act done by V to D which would cause a reasonable man to lose self-control suddenly and temporarily. Rendering them momentarily no longer the master of their mind (R v Duffy and s3 Homicide Act 1957).

The defence of Loss of Self-Control is unfortunately as uncertain as its predecessor. Given that men remain provided with a defence to excuse their killing of their adulterous partners. Whilst women are not afforded the same protection when killing their abusive partners.

Sexual Infidelity has long been regarded as the hallmark example of a situation in which the defence of Provocation could be successfully invoked (R v Wells). Male possessiveness and jealousy however are no longer regarded as an acceptable reason for a loss of self-control resulting in homicide (R v Smith (Morgan)). Resulting in Parliament expressly excluding Sexual Infidelity as a qualifying trigger in Section 55(6)(c).

A qualifying trigger is dependent on a fear of serious violence from the victim against the defendant based on things said or done which constitute circumstances of an extremely grave nature (s55(4)(a)) and cause the defendant to have a justifiable sense of being seriously wronged (s55(4)(b)). But the exclusion has little practical effect due to not defining Sexual Infidelity. Resulting in things done or said which could be associated with sexual infidelity not being excluded as Parliament intended. Court of Appeal in Clifton set out that loss of control caused by sexual infidelity cannot, on its own, qualify as the anger trigger but that impact of the relevant sexual infidelity can be considered under the objective test in s54(1)(c) when assessing the circumstances in which D lost control. Section 54(3) was held to expressly provides that the defendant’s circumstances extend to all the circumstances except those bearing on his general capacity for tolerance and self-restraint which may include factors relating to sexual infidelity. This was criticised as put by Baker and Zhao as allowing sexual infidelity in through the ‘back door’. Clough argued that outright exclusion will only be effective in covering a small number of cases as the effects of sexual infidelity such as envy, jealously or possessiveness do not come under the ambit of Sexual Infidelity in this context (Simester and Sullivan). The approach to sexual infidelity was confirmed in Dawes, Hatter & Bowyer despite practically rendering the exclusion in s. 55(6)(c) is meaningless (Wilson).

The grounds in which Provocation was typically invoked favoured those with quick tempers and the physical strength to act immediately over those with slow-burning temperaments (Ashworth). Requiring a sudden temporary loss of control created a glaring gender imbalance in the protection the defence afforded. Favouring men who are more likely to have the physical strength and temperament to react instantly whilst women are more likely to delay their reaction or to use a weapon (Loveless et al). Resulting in the law being inadequate in protecting women suffering from domestic abuse as in McGrail and Ahluwalia. There was an attempt to address this issue by way of s54(2) removing this requirement. Allowing for women to plead a defence that justifies their actions on the basis that they killed due to their abusive

husbands. However, the effectiveness of this solution for ‘slow-burn cases is questionable as significant hurdles remain. Loss of Self Control under its definition is a moment of departure from being in control (Norrie) which is hard for abused women to satisfy as there is no loss of control as required under 54(1)(a). The narrow and persisting interpretation of Loss of Control as something that mitigates moral culpability to the extent that a person acted in a less-than-fully controlled manner (Ashworth) fails to protect women. As the actions of abused women may be interpreted as a calculated attack which is not a loss of control (Serrano). s54(4) also stipulates the defence is not available for those with the desire for revenge. Creating the risk that a long gap between the trigger and the fatal assault may be interpreted as revenge over loss of control (Mitchell).

In conclusion, the statement is correct in that the Loss of Self-Control defence fails to fully address the persisting issues of sexual infidelity and domestic abuse from its predecessor Provocation....