Scenario Question Plan – Defences
Red – Legal Authority
Blue – Application
The issue in the scenario is criminal defences. The actions and circumstances of
(defendant in scenario) must be considered in light of relevant statutes and case
law. In defining and explaining the relevant law, it will be possible to establish
whether (defendant in scenario) has any defences to their crime.
Loss of Control
Loss of control is a special and partial defence to murder, if successful the
defendant’s charge will be lowered to voluntary manslaughter and their sentence
decreased. The burden of proof is on the prosecution to disprove loss of control
beyond all reasonable doubt.
Identify: S54(i) Coroners and Justice Act 2009
Define: The defendant must have lost their self-control at the time of the actus
reus. Under the new loss of control defence, the loss of control need not be
sudden. This allows for women with a ‘slow burn’ reaction to be treated more
fairly, as seen in Ahluwalia (1992) where the defendant killed her husband after
enduring years of abuse. For this defence the defendant must not have been
acting in a ‘considered desire for revenge’.
Apply: Did the defendant lose their self-control at the time of the actus reus? If
so, as long as they were not acting out of a desire for revenge, the defence of
loss of control may be applicable.
The defendant must have lost their self-control as a result of one of two
‘qualifying triggers’.
Identify: S55(i) Coroners and Justice Act 2009
Define: Allows for the loss of control to stem from ‘fear of serious violence’. The
test for this trigger is subjective, which means it is how the defendant fears, not
how the ‘reasonable man’ or someone else in their position would fear the
serious violence.
Apply: Did the defendant themselves fear serious violence? Is this why they lost
their self-control? If yes, they may be able to use the defence of loss of control.
Identify: S55(ii) Coroners and Justice Act 2009
Define: This trigger applies if the defendant’s loss of control was attributable to
‘things said or done which constituted circumstances of extremely grave
character’ which caused the defendant to have a ‘justifiable sense of being
, seriously wronged’. The Court of Appeal observed in R v Clinton, Parker and
Evans (2012) that this trigger requires an objective evaluation. This means that
the trigger can no longer be used for trivial matters, like the persistent crying of
a baby which was held to fall under ‘things said or done’ in R v Doughty (1986).
Apply: Were things said or done that constituted circumstances of extremely
grave character? Did those things cause the defendant to have a justifiable
sense of being extremely wronged? Would a jury objectively think this to be true?
If yes, the defendant may be able to use the loss of control defence under this
trigger.
Identify: S54(1)(c) Coroners and Justice Act 2009
Define: Contains the objective test which asks whether a person of the
defendant’s sex and age, with an ordinary level of tolerance and self-restraint,
and in similar circumstances, might have acted in the same or a similar way to
the defendant. It is thought that where abnormal characteristics are present, it is
more likely that the defendant will rely on the defence of diminished
responsibility.
Apply: Would a person of the defendant's sex and age with an ordinary level of
tolerance and self-restraint have acted in the same way under the
circumstances? If yes, the loss of control defence may be applicable.
Identify: S55(6)(c) Coroners and Justice Act 2009
Define: States that ‘the fact that a thing done or said constituted sexual
infidelity is to be disregarded’. The case of R v Clinton, Parker and Evans (2012)
was important on this issue as the court held that where sexual infidelity alone
was the trigger then the defence is not permitted but where it is ‘an essential
part of the context’ then the defence may apply. For example, if the victim tells
the defendant he is having an affair and makes serious and grave insulting
remarks about her compared with his new lover, and then she kills him, she may
have a defence for loss of control.
Apply: Does the thing said or done constitute sexual infidelity? If so, it will be
disregarded. However, is the sexual infidelity an ‘essential part of the context’? If
so, the defence may be applicable if it is combined with one of the other
qualifying triggers.
Diminished Responsibility
Diminished responsibility is a special and partial defence to murder, if successful
the defendant’s charge will be lowered to voluntary manslaughter and their
sentence decreased. The burden of proof is on the defendant to prove ‘on the
balance of probabilities’ that they were suffering from diminished responsibility.
Red – Legal Authority
Blue – Application
The issue in the scenario is criminal defences. The actions and circumstances of
(defendant in scenario) must be considered in light of relevant statutes and case
law. In defining and explaining the relevant law, it will be possible to establish
whether (defendant in scenario) has any defences to their crime.
Loss of Control
Loss of control is a special and partial defence to murder, if successful the
defendant’s charge will be lowered to voluntary manslaughter and their sentence
decreased. The burden of proof is on the prosecution to disprove loss of control
beyond all reasonable doubt.
Identify: S54(i) Coroners and Justice Act 2009
Define: The defendant must have lost their self-control at the time of the actus
reus. Under the new loss of control defence, the loss of control need not be
sudden. This allows for women with a ‘slow burn’ reaction to be treated more
fairly, as seen in Ahluwalia (1992) where the defendant killed her husband after
enduring years of abuse. For this defence the defendant must not have been
acting in a ‘considered desire for revenge’.
Apply: Did the defendant lose their self-control at the time of the actus reus? If
so, as long as they were not acting out of a desire for revenge, the defence of
loss of control may be applicable.
The defendant must have lost their self-control as a result of one of two
‘qualifying triggers’.
Identify: S55(i) Coroners and Justice Act 2009
Define: Allows for the loss of control to stem from ‘fear of serious violence’. The
test for this trigger is subjective, which means it is how the defendant fears, not
how the ‘reasonable man’ or someone else in their position would fear the
serious violence.
Apply: Did the defendant themselves fear serious violence? Is this why they lost
their self-control? If yes, they may be able to use the defence of loss of control.
Identify: S55(ii) Coroners and Justice Act 2009
Define: This trigger applies if the defendant’s loss of control was attributable to
‘things said or done which constituted circumstances of extremely grave
character’ which caused the defendant to have a ‘justifiable sense of being
, seriously wronged’. The Court of Appeal observed in R v Clinton, Parker and
Evans (2012) that this trigger requires an objective evaluation. This means that
the trigger can no longer be used for trivial matters, like the persistent crying of
a baby which was held to fall under ‘things said or done’ in R v Doughty (1986).
Apply: Were things said or done that constituted circumstances of extremely
grave character? Did those things cause the defendant to have a justifiable
sense of being extremely wronged? Would a jury objectively think this to be true?
If yes, the defendant may be able to use the loss of control defence under this
trigger.
Identify: S54(1)(c) Coroners and Justice Act 2009
Define: Contains the objective test which asks whether a person of the
defendant’s sex and age, with an ordinary level of tolerance and self-restraint,
and in similar circumstances, might have acted in the same or a similar way to
the defendant. It is thought that where abnormal characteristics are present, it is
more likely that the defendant will rely on the defence of diminished
responsibility.
Apply: Would a person of the defendant's sex and age with an ordinary level of
tolerance and self-restraint have acted in the same way under the
circumstances? If yes, the loss of control defence may be applicable.
Identify: S55(6)(c) Coroners and Justice Act 2009
Define: States that ‘the fact that a thing done or said constituted sexual
infidelity is to be disregarded’. The case of R v Clinton, Parker and Evans (2012)
was important on this issue as the court held that where sexual infidelity alone
was the trigger then the defence is not permitted but where it is ‘an essential
part of the context’ then the defence may apply. For example, if the victim tells
the defendant he is having an affair and makes serious and grave insulting
remarks about her compared with his new lover, and then she kills him, she may
have a defence for loss of control.
Apply: Does the thing said or done constitute sexual infidelity? If so, it will be
disregarded. However, is the sexual infidelity an ‘essential part of the context’? If
so, the defence may be applicable if it is combined with one of the other
qualifying triggers.
Diminished Responsibility
Diminished responsibility is a special and partial defence to murder, if successful
the defendant’s charge will be lowered to voluntary manslaughter and their
sentence decreased. The burden of proof is on the defendant to prove ‘on the
balance of probabilities’ that they were suffering from diminished responsibility.
