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Published: Fri, 02 Feb 2018
The structure of the defence [of loss of control]
Discuss the changes to the former defence of provocation brought about by the Coroners and Justice Act 2009 ss 54-55. To what extent do you agree with the above analysis?
The coroner and justice act 2009 has received royal assent on November 2009. The old common law based provocation has always been the subject of criticism and proposals for reformation either for its objective standard of reasonableness or for its inability to provide partial defence to those women who have suffered domestic violence. Effort will be taken to examine the new partial defence called as Loss of Self Control inaugurated by The Coroners and Justice Act 2009 and scrutinize its features which distinguishes it from its predecessor .Effort will also be made to find out the problems still existing with the new law and to see how far the comment made at page 401 of Simester and Sullivan’s criminal law Theory and Doctrine (fourth Edition) is correct.
Provocation and the loss of self control
The classic definition of provocation came from the decision of Duffy  from which it was appeared that provocation is some act or acts done to the accused by the dead man which would actually cause the defendant to loss self control suddenly or temporarily which would also be the same to a reasonable man.
This definition was later modified by section 3 of The Homicide Act 1957 that imposed duty on jury to take in to account every thing both said and done in determining the question whether the provocation was enough to make a reasonable man do as the defendant did.
The above provisions have been taken over later by section 54 of The Coroners and Justice Act 2009 which along with other provisions provides for qualifying triggers for
Losing the self control by the defendant and specifies the objective test to the effect that any person having same sex and age of the defendant with normal degree of tolerance and self restraint might have done or reacted the same or in similar way .
The basic areas of changes to the former defence of provocation
Under section 54(1) (c) of the Coroners and Justice Act 2009 the objective test requires that in order to avoid the defendant’s conviction of murder it has to be proved that a person of D’s sex and age with a normal degree of tolerance and self restraint and in the circumstance s of D might have reacted in the same or in a similar way. This is linked with section 54(3) of the CJ Act 2009 which endorses the decision of the privy council in A-G for Jersey v Holley  , which rejected the judgment of the house of lords in smith (Morgan)  by saying, “only the sex and age of the reasonable person can be attributed to the reasonable person, individual factors that bear down of the defendants ability to exercise self control, like depression, have to be ignored”  . After Holley the other characteristics of the person like alcoholism, depression, glue sniffing was only relevant if the taunts were leveled at the fact that the defendant was alcoholic, depressed The wordings might have reacted in similar or same way” is considered as more favorable than the previous provision requiring that “the reasonable person would have lost self control and acted as D did”. This is favorable to those who fail on public and private defence for excessive use of force. As for instance, the defendant’s plea for partial defence was failed as she had used knife, the reasonable person would no have done as D did  . But if this case comes today she will be able to rely on defence of “reasonable people may have done the same or in the similar way. The other word “circumstances” used in place of “characteristics” is also favorable to battered women as it suggests being able to consider prior abuse as an external element rather than internalizing it as some kind of character flaw or syndrome.
The Judge and the jury
With provocation the judges were bound to put the defence to the jury if there were more than a speculative possibility that there was evidence of provocation. In Bullard v R  it was held to be “any evidence …..Fit to be left to jury” where as Lord Diplock used the phrase “however slight” in DPP v Camplin.  In R v Rossiter  , Russell LJ mentioned as “material capable of amounting o provocation, however tenuous it may be”. But under section 54 of the Coroners and Justice Act 2009 the judge is now empowered to determine whether he thinks there is any evidence of provocation. The judge has the power to remove cases from the jury’s consideration.
The loss of “sudden” requirement
Under section 54(2) loss of self control need not be sudden which has contrasted with the provision of provocation. Although section 3 of the Homicide Act 1957 did not mention that loss of self control must be sudden but it was considered as good law after the decision of R v Duffy  . Under this law the especial difficulties were faced by the battered women who killed as a result of domestic violence after a slow burn reaction. In Ahluwalia it was held that “success is unlikely where there is an obvious delay between the provocation and the killing”  . However, in Richens it was held that “D did not have to loss of self control to the extent that he did not know what he was doing”  . This is the case with the new law.from the new law perspective it can be said that similar defendants like in Ahluwalia  , Pearson,  and Baillie  can rely on the new defence.
With provocation, sexual infidelity was counted as a thing done. In Davies  the defendant was considered to be provoked by the acts of his wife’s lover to kill her. In another case defendant who stabbed his wife could not rely upon the defence just for the reason she went to holiday with another man, the defendant’s plea for defence was not successful for he did not know about her holiday trip before he killed.  .The new law specifically rules out adultery as qualifying trigger. It is mentioned under section 55(6) (c) that things done or said does not include sexual infidelity.
Provision regarding incitement by the defendant
With provocation defendant could rely on the defence in the case where his misbehaviors led to the violence which provoked him.  but section 55(6) (a) of the Coroners and Justice Act 2009 directs the court to disregard D’s fear of serious violence if it was caused by D’s incitement which was intended to use as an excuse for his violent act. .According to section 55(6) (b) a sense of being seriously wronged is not justifiable if D in order to have an excuse to use violence incited the victim.
Fear as a qualifying trigger
Fear is included as qualifying trigger under section 54(3) which provides, “where the defendant fears serious violence from the victim against the defendant or any other identified person”. This trigger was partly intended to expand the scope of this partial defence by assisting battered women who kill their partner from the fear of domestic violence. It was also intended to ease the problem of former law on provocation which was according to Law Commission, “elevates the emotion of sudden anger above emotions of fear, despair, compassion and empathy.”  Fear was totally excluded from the provocation before Coroners and Justice Act 2009. In Duffy, Devlin J had expressly excluded fear specifically in the context of domestic violence  .in R v Acott, “Lord Steyn also excluded fear by saying that a loss of self control caused by fear ,panic, sheer bad temper, or circumstances (for example, slowing down of traffic due to snow) would not be enough”. 
Problems with the Coroners and Justice Act 2009
The problem area is the meaning and nature of the term “extremely grave character” .There is not any guideline included in the law to clarify which situations this might cover and how will the judge adequately direct the jury especially when “the meaning of the term differs based on the life experience and culture of the defendant.”  Also the act is silent on whether this is subjective or objective test.
The new law also provides that sexual infidelity is not covered by the qualifying trigger as things said or done. But it is not clear why this sexual infidelity having special treatment when the other triggers like honor killing can potentially qualify. In Mohammed (Faqir)  , the defendant stabbed his daughter to death when he discovered a young man in the bed room. The daughter’s conduct would count as qualifying trigger under section 54(4).
The new law speaks of a person of D’s sex and age having normal degree of tolerance, self restraint in the circumstances of D.  .Here sex is added as a general characteristics to be taken in to account .Age is included because capacity for self control is an aspect of maturity and it would be unjust to expect the same maturity level of 12 years old and an adult. The idea is presumably that sex also generally affects capacity for self control but left unstated exactly how.
Under section 55 (4) (a) and (b) the qualifying trigger includes only circumstances of an extremely grave character that causing the defendant for having a justifiable sense to be seriously wronged. Here the law is not clear whether justifiable is in the eye of jury or of the defendant. What the defendant thinks as justifiable may not be the same to the jury. As for example, the batter woman who seeks defence based on one of the qualifying triggers needs to persuade the jury that her circumstances may be considered as extremely grave and she has justifiable sense of being seriously wronged. But the jury taking the time lapse between the last act and the killing in to consideration and applying the objectivity test may concur that killing was not justifiable. Applying the same test to Mohammed (Faqir), what the defendant thought as justifiable on the basis of his religion and culture might not be the same to the jury as the 2009 act does not require consideration of religion and culture in determining what a reasonable person might do in the situation.
“The qualifying trigger “fear of serious violence from V” is intended to accommodate the situation which was not covered by anger based provocation. When the defendant was motivated by fear the anger based provocation was struggling to fit that model. from this perspective although the parliament intended to offer a defence to batter woman for use of excessive force of self or another  it needs not be that so long the defendants purpose was genuinely defensive. It ought not to be a matter whether she suffered loss of self control or not. another problem with this fear trigger that if the defendant relies on this trigger for his excessive use of force he or she may be deprived of the defence on the basis that an ordinary person with normal degree of tolerance and self restraint would not have used that degree of excessive force. So fear trigger will not go with the objective test .” 
The government’s effort to resolve the provocation problem is definitely a welcome change most notably by removing the sudden requirement for loss of self control and appending fear as a qualifying trigger but still some areas are problematic especially the extremely grave character and justifiable sense of being seriously wronged terms are considered as more complicated and troublesome causing no end of debate for the courts to decide what situation this might cover. Although the sudden requirement is removed by new law the other associated provisions inaugurated by the Act will make it difficult for the battered women to avail the partial defense. For example the law provides for the jury to take in to account the time lapse between the first act and killing when deciding the case. If they take this delay into consideration then the excessive force used by the battered women out of fear may not be considered as justifiable by the jury which means that the inclusion of fear trigger will not bring a good result for the battered women as it was thought. Moreover there is no guideline included for the meaning of self restraint and normal degree of tolerance also what situation covers as seriously wronged. From this point of view the comment made at page 401 of Simester and Sullivan’s criminal law Theory and Doctrine (fourth Edition) is correct but also it has to be in mind that most of the new laws have had the similar problems of wording and applicability which have been corrected and developed later by the case law. The case law in this partial defence of loss of self control is yet to be developed .Time is required to have some positive out come and obviously the case law will be the mentor for directing the new law to the right path and bringing out the intended result by removing all complexities.
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