PLS circumstances of D, might have reacted in

    

                             

PLS ASSIGNMENT

                                                                                                                                            

                   PROFESSIONAL

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                 LEGAL SKILLS SUBJECT

                             

                             The Effectiveness

                                                                                                        of  research

                                                                                                         and discuss topic            

                                      

                      Student id: 17450271

 

 

 

Table of Contents

–      Topic assignment

–      Introduction

–      Overview of s.54 of the Coroners an Justice Act 2009

+ S.54 of the Coroners an Justice Act 2009

+ i/ Definition of  loss of self-control

+ ii/ Qualifying trigger

+ iii/ Sexual infidelity

+ iv/ Degree of tolerance and self-restraint

+ v/ The New Law

–      Conclusion

 

 

       

 

Topic assignment

Statute: “Where a person (“D”) kills or is party to the killing of another (“V”), D is not to be convicted of murder if – D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control.”

Coroners and Justice Act 2009 section 54(1)

Introduction

The defence of  loss of control was introduced by s.54 of the Coroners and Justice Act in 2009, applied and started making in 10/2010. The following arguments is based on the collection of surveys, documentary and application in society since the promulgation of the s54 of the Coroners and Justice Act 2009 to this time.

Overview of s.54 of the Coroners an Justice Act 2009

 S.54 of the Coroners an Justice Act 2009 1

1) Where a person “D” kills or is a party to the killing of another “V”, D is not to be convicted of murder if:

   a)  D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control.

   b) The loss of self-control had a qualifying trigger.

   c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

2) For the purposes of subsection 1-a, it does not matter whether or not the loss of control was sudden.

                                                                      

5/ On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection 1, the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

i/ Definition of  loss of self-control

     There are many reasons for the loss of self-control can called uncontrolled self:

The defence of loss of control replaces the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009.

Bottom of Form

 

The defence of loss of control replaces the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009. Provocation had operated as a special defence or partial defence to a charge of murder and had the effect of reducing the murder charge to one of manslaughter under Section 3 of the Homicide Act 1957. The new partial defence of loss of control is provided by Sections 54 and 55 of the 2009 Act. The defence can only therefore be raised as a defence to a murder charge. Even if successful there will still be a conviction for manslaughter and not murder. If the defence is not successful there will be a conviction for murder.

 

It is now thought that the effect is that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that a reasonable person would have reacted as the defendant did. This contrasts with the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances. In R v Clinton 2012 the trial judge held that the defence of loss of control was not available to the defendant because the words relating to infidelity should be disregarded as a qualifying trigger. On appeal the Court of Appeal decided that where infidelity was a factor this could influence other qualifying triggers and a retrial was ordered.

 

The nature of the defence is that there must be a loss of control (Section 54 (1) and there needs to be a qualifying trigger (Section 54 (1) (b). Section 55 later helps to define what amounts to a qualifying trigger but Section 54 (2) deals with concerns about ‘slow burn’ type situations by providing that loss of control need not be sudden. The loss of control is a matter of fact for the jury to determine and whilst it need not be sudden, time is a factor and any lapse of time between any incident and the killing is material. It does not necessarily follow that the old case law under the law of provocation is no longer relevant and time will tell how helpful the former cases will be. We also know from the 2009 Act that the defence will fail if it can be shown that the defendant acted out of revenge (Section 54 (4).

 

Section 54 (1) (c) deals specifically with the individual’s circumstances by setting the bar in terms of reasonableness. Would a person with certain characteristics such as the same sex, age and with an ordinary level of tolerance and self-restraint as the defendant have acted in the same or similar way to the defendant.2

 

ii/ Qualifying trigger

     The legal system, provocation can be evidence in the trial. This has long been a difficult problem. The provocative action was not intentional or targeted at the victim as shown in R v Doughty 1986 where a baby crying was accepted as a provocative act and the judge was wrong to decide the crying did not fall within the definition of a provocative act. (Webstroke Law, 1986).

 iii/ Sexual infidelity

The legislation defines neither “sexual infidelity” nor “seriously wronged”. Clinton, however, makes clear that a person cannot claim to have been seriously wronged by sexual infidelity on the part of a spouse or partner, whatever that person’s expectation of that relationship may have been. In an attempt to give some play to the effect of complex emotions, the court held, however, that emotions resulting from the discovery of sexual infidelity which do not of themselves fall within the qualifying triggers (s.55(6)) are not to be severed artificially from emotional reactions which could fall within the qualifying triggers under the remaining provisions of s.55(3), (4) and (5). Sexual infidelity, while not of itself a qualifying trigger, can be taken into account where facts supporting a qualifying trigger exist and may presumably be taken into account in determining whether a normal person would have reacted as the accused did.

–       The first case, R V Clinton 2012 Clinton killed his wife because of her sexual infidelity. He was sentenced to life in prison and sentenced to life in prison for at least 26 years. His case was dismissed appeals for mitigation of offenses and penalties remained unchanged.

–       The third case, Evans killed his wife in their family home because of her sexual infidelity. The jury at the Crown Court rejected the loss of control defence and convicted him of murder. He was sentenced to life imprisonment with a minimum specified term of 11 years.

iv/ Degree of tolerance and self-restraint

     D must be judged objectively when considering the level of tolerance and self-restraint he should have been capable in the situation. Characteristics such as depression, alcoholism and other conditions cannot be considered when deciding if the jury may have reacted in the same way.34

v/ The new law

Under the new law, the partial defence to murder of loss of control requires a loss of self-control (s.54) which has a “qualifying trigger” (s.55). The loss of control is monitored by an objective test, which stipulates that it must have been such as would have been experienced by a “person of D’s sex and age, with a normal *Crim. L.R. 276 degree of tolerance and self-restraint and in the circumstances of D” (s.54(1)(c)). The “circumstances of D”, it is added (s.54(3)), refers to,

“all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint”. 5

Conclusion

     Coroners and Justice Act 2009 Section 54 is issued to help defendants (who may be victims of the victims, especially rape and adultery cases). Incitement from the victim to the defendant caused them to lose control of themselves leading to murder. There are many reasons for the case. Depending on the circumstances, the judge in the court makes the decision and bases the case on the law accordingly. Particularly with s.54, murder of an irritated and uncontrolled self is grounded for consideration. However, not all appeals are mitigated, in cases where the court can not adjudicate and refute the appeal, serious cases are reviewed and adjudicated several times in high court order. There are higher court decisions overturn with previous judgments. Act S.54 and related statutes are a state tolerance for offenders who are subjected to mental agitation, defense lawyer may be collected at this point to relieve the client of the offense they. However, the reverse according to new research and data statistics, the rate of homicide criminals is increasing, especially after the law s.54 was issued and applied, there many cases use this law to mitigate offenses and penalties. The final decision is either true or false, the appeal is admissible in the capacity of jury and the similar cases last time. Legislation has two sides, UK legislation is increasingly perfect and tight, as well as review among fellow judges about the verdict of a case, as the ruling may become precedent in the future.

 

 

 

 

 

 

 

 

BIBLIOGRAPHY

1.     S.54 of the Coroners an Justice Act 2009…………… (legislation.gov.uk, 2009)

2.     The R v Doughty 1986………………………………. (Webstroke Law, 1986)

3.     The R V Clinton 2012, Parker, Evans……………… (Lawteacher, 2012)

4.     The Jersey v Holley 2005……………………………. (Webstroke Law, 2005)

5.     The DPP v Camplin 1978 House of Lords………… (e-lawresources.co.uk, 1978)

6.     The R v Clinton 2012…..……………………………… (Inherently Human, 2012)

7.     The New Law……………………………………………(llbstudies.files.wordpress.com)

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1 (legislation.gov.uk, 2009)

2.This area will no doubt be the subject of judicial consideration. In the meantime the fact that the defendant was said to be unwell, sleeping badly, tired, depressed and “unable to think straight” was found insufficient for loss of self-control ( R v Jewell (2014)).

 

3     In the case of Jersey v Holley 2005 the review of the tolerance was dismissed.

(Casa briefs, 2005)

 

4   DPP v Camplin 1978 House of Lords (e-lawresources.co.uk, 1978)

 

5 https://llbstudies.files.wordpress.com/2013/02/article-loss-of-control-diminished-responsiblity-1.pdf