Do you think the change from ‘provocation’ to ‘loss of control’ has changed the law for the better or moved too much in the opposite direction?
Loss of self control is the new special and partial defence to murder, latter to the reform. The new defence was introduced by ss54 and 55 of the Coroners Justice Act 2009. This new defence replaces the old defence, better known as Provocation. Although introducing the new defence was designed to change the law for better (referencing to the old one) it’s criticised that some provisions can actually only make sense against the background of what went on before and that actually case law on the old defence may continue to have relevance under the new defence. Reason for the reform was to better the law, one way this was instigated was because of the Law Commissions report ‘Murder, manslaughter and infanticide’ in which they had stated “the degree of provocation is a confusing mixture of judge made law and legislative provision” – which essentially means it’s too confusing to define as the two contradict each other. Before the defence was defence was reformed, the old defence Provocation was approximately 350 years old and was modified by Parliament in the Homicide Act 1957. The old defence stated that was to be any evidence of provocation, that a subjective test of whether D lost self control was to be applied and that an objective test of whether a reasonable man would have lost his control would be applied as well. The new defence which is better known as “Loss of Self Control” now states that the killing resulted from D’s is loss of self control, that this killing was from a qualifying trigger, and that a person of D’s age and sex – with normal degree of tolerance and self restraint and in the circumstances would react in the same or similar way as D. Therefore the key elements of the new defence initially are 1) Loss of self control 2) A qualifying trigger and 3) A normal person test. Something new about the defence are the qualifying triggers and there are two; trigger 1 is D’s loss of self control was attributable to D’s fear of serious violence from V against D or another identified person. This applies to the case of Pearson 1992 in which two brothers had killed their father after endless years of torture and abuse received by him. Trigger 2 is D’s loss of self control attributable to a thing or things done or said for both which a) constituted circumstances of an extremely grave character and b) caused D to have a justifiable sense of being seriously wronged. An example of an old provocation case where trigger 2 would almost definitely qualify is DPP v Camplin 1978 where D was raped by V and then laughed at afterwards. Being raped definitely covers ‘circumstances of an extremely grave character’ and would no doubt feel ‘a justifiable sense of being seriously wronged’ not just by the physical violation of rape but also by the psychological humiliation of being laughed at afterwards. The reform clearly shows in this case that the law had been changed for the better as D would’ve been able to plead loss of control under trigger 2 and it would have been acceptable in his circumstances – allowing justice for D. So in this sense reform is moving in the right direction. Humphreys 1995 is another case that underwent the old defence where trigger 2 could have possibly been from the new defence. This case is the predicament of battered women who kill, the facts of this case were that D – a 17 year old prostitute killed her abusive partner, he was provoking her by accusing her of attention seeking, under the old defence a subjective test was carried out to determine whether a reasonable woman would have acted as D did in these circumstances, this was agreed and D was convicted of manslaughter. However this case would have applied to trigger 2 under the new defence as ‘a thing done or said’ were both apparent to the case. The restrictions on the triggers are that if either trigger...
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