The Coroners and Justice Act 2009 - Essay Example

Coroners and Justice Act 2009 Introduction The month of October saw the abolishment of provocation and enactment of the Coroners and Justice Act 2009. This followed the 2006 report inherently formulated by the Law Commission1. The report recommended the revision and redrafting of the partial defences to murder in conjunction with the reshape of the law of homicide as a whole. The government responded by initiating the new Act which subsequently became law. The abolished Defence of Provocation provided guidance on cases that involve total loss of control concerning the actions of a second party resulting into possible murder2. In its report, the Law Commission cited a number of issues that needed address. The commission also provided guidelines on how the issues could remain dealt with. The foremost issue identified was the fact that the aspect of provocation had no clear guidelines for its implementation and raised vast public complains such as gender bias3. Coroners and Justice Act 2009 Under this new law, the partial defence to murder of loss of control has its basis on a number of aspects. These aspects are the core components of loss of control. These components must remain adhered to when making decisions of cases of this nature. The components are discussed in detail below. The partial defence to murder because of loss of control should remain based on a qualifying trigger. In this case, the reaction of a person towards an angering situation is measured against the reaction of another person with a normal degree of self-restraint and tolerance. The second individual should be of a similar age and sex as the first person. Section 54 provides for this off the act. For the validity of the defendant’s argument, the loss of self-control should not have been sudden. The cause of the course of action in response to the qualifying trigger should not remain based on revenge. In this case, the defence states that the defendant acted based on loss of self-control. The prosecution faces the task of proving that the defendant did not experience a loss of self-control. The prosecution can only raise this issue if the presiding judge is on the opinion that the evidence put forward by the prosecution does not satisfy the concerned jury4. The basis of qualifying triggers is on anger and fear. A person can be said to have lost self-control because of fear attributable to serious violence from the second party. The loss of self-control can also remain based on anger that is attributable to a justifiable situation of being wronged. These situations bring about the anger trigger and the fear trigger respectively. The two are key components of the Act. Therefore, the new law bases defence on the loss of self-control due to fear and due to anger. However, the defendant’s case can only be credible if he or she did not in any way provoked the occurrence of the violence they feared or the actions that angered him or her. Sexual infidelity is excluded as a possible cause of the action taken after the loss of self-control because of anger or fear. This is stipulated under Section 55, sub-section 4. History of Cases Relevant to the of Loss of control Defence The conception and implementation of Loss of control defence bill followed a series of homicide complex cases to the UK jury. The old law based its judgments on acts of murder due to provocation. On the contrary, bases its judgments on anger and fear trigger legal concepts. The paper explores the following relevant historical cases in relation to the aforementioned concepts. The Alhuwalia Case The Alhuwalia case was based on provocation of such gravity that could elicit a reasonable man to commit homicide. The defendant had been subjected to 10 years of domestic violence and she murdered her husband by throwing petrol in his room and setting it on fire. No evidence was put forth to suggest that the defendant suffered from post-traumatic Syndrome thus the reasonableness of the defendant’s actions could not be outlined as to have elicited provocation5. The case had to be decided based on defence of diminished responsibility6. This case provided ground for the formulation of the Loss of Self Control Defence that would base the defendant’s actions on the aspects of anger trigger or fear trigger. The Morgan Smith Case In this case, the defendant killed the victim on grounds that the victim stole his tools. The defendant stabbed his victim to death. The defendant claimed that he was undergoing diminished responsibility and only acted under provocation7. The ruling found the defendant guilty of manslaughter punishable by seven years of imprisonment. Under the new law, the defendant would have argued the case based on anger trigger. The defendant would state that the actions of the victim were serious and led to loss of self-control causing the defendant to commit murder because of anger8. Key Arguments Advanced by Norrie in his analysis of Loss of Control defence Norrie outlines some aspects concerning the defence of loss of control and argues some issues out. Norrie first analyses the legal perspective of anger. In the view of the Law commission, expression of anger is an indication that an individual is normal and on certain occasions anger is appropriate as the reaction to certain actions done or words that have been expressed. He however states that the parameters by which this concept fits into the law are complex. Norrie outlines arguments advanced by other parties on the matter. Others are of the opinion that being angry is not reason enough to necessitate violence. The argument that seeks to address this states that anger can be ethical and that not being able to feel strong anger may be a sign of inhumanness and moral weakness. Norrie interjects buy stating that given the reasons, anger cannot justify violence let alone murder. He however acknowledges that murder resulting from anger is less inhumane compared to murder that is caused by jealousy or political wrangles9. Norrie outlines the action that results from emotions requires complex judgment in the process of assessing whether the action was right or wrong. He adds that this scenario remains based on an imperfect justification. The reason he gives for saying this is that in such a situation, reasoning does not consider the aspect of loss of self-control. The concept used here is that a particular action can be righteously attributed to anger. In such a situation, there is no need for the incorporation of loss of self-control as part of the defence. The reason Norrie gives for this is that being out of control may make an action that resulted from justifiable anger seem immoral. In addition, the same concept is applicable in the case of fear10. According to Norrie, if this is the concept adopted by the Law commission, its comparison to the previous act is vital. The Law Commission identifies the approach adopted by the previous Act is not justified and was just based on excuse. Norrie terms this as a companionate excuse. Norrie further argues that it is not just for an individual to lose control of his or her emotions inappropriately as this is an indication of the inability of a person to maintain a moral course of action. He also acknowledges that one can lose self-control under certain understandable circumstances and can therefore be excused. Despite condemning the wrong done and the loss of self-control, the law still sympathizes with the person associated with the action. The sympathy is because human being emotions are susceptible to provocation. The results of actions attributed to loss of self-control are condemned but the natural weakness of the actor to emotions is treated compassionately. It is understandable that the compassion only applies in certain situations only and loss of self-control is not sympathized with under all circumstances. Further, in his article, Norrie identifies the major problems that led to the change in the law. He cites the first problem as being associated with the judges and their juries. The law commission raised concerns that the minimal and less serious forms of provocation were left to be handled by the jury. Norrie argues that this was not such a serious problem. However, this was not the only concern of the Law Commission. The other concern involved the determination of legal and just grounds for the application of defence both morally and politically. The commission had the foremost aim was to establish the law in such a way that it requires provocation to have a legitimate basis so that the response to the provocation can be deemed as appropriate. In a case where action is taken on legally unclear grounds, the case is taken from the jury. According the commission’s recommendation, provocation should be termed as being “gross” in a way that justifiably elicits the feeling of being wronged. The Act however does not incorporate the word gross and replaces it with “extremely grave”. From this understanding, Norrie deduces information on what the right or wrong response to a particular provocation that is addressed by the law commission. Under the old law, no distinction existed between the right responses to provocation and the responses that are unjustifiable. Thus, the old law did not outline a standard for assessing the acceptability of a particular cause of action in relation to provocation. Judges were also not empowered to make decisions on the issue. Norrie introduces the new law as a solution to this problem. The new law takes into account the justifiability of a feeling of being seriously wronged thus directs the jury on what is acceptable and what is not and gives the judge power to retract cases from the jury. In the same context, the Law Commission touched on the issue of killing a spouse on matters to do with infidelity. The provisions for such a case are found under Section 55, subsection 6 of the Act. The Law Commission stated that the standard of reference as far as the defendant is concerned should be a person of a similar age and ordinary degree of tolerance and self-restraint. In Section 54, subsection 1 of the act, sex is added to the list of general characteristics and the other difference from the formula proposed by the Law Commission is the omission of the word ordinary. The adopted formula takes only sex and age as the factors that may affect an individual’s level of tolerance and self-restraint. However, Norrie points out that the role played by sex in the new law is not clear. Age is included because the law commission took the fact that the level of self-restraint would depend on an individual’s maturity. The commission argued that it was not possible for a 12-year-old child and adult to exercise the same level of self-restraint due to the age difference and subsequently difference in the level of maturity. The effect of sex in the exercise of self-control is still not addressed. Norrie differs with the commission and argues that age is not a standard determinant of maturity. Persons of similar age could have varied levels of maturity and therefore they would exercise different levels of self-control. Norrie also raises the issue of there being an immature adult. The commission takes the fact that many who kill are emotionally immature but argues that psychological determination off the defendant’s maturity may be a complex process that may undermine the objective test. The commission agrees that the law should go beyond the simple aspect of age but does not support this for what the commission terms as policy reasons. Norrie says that this would make it difficult for the defence to put together all the aspects of emotional maturity and in this way justice is lost. Norrie adds, in his argument, the case of Morgan Smith who had killed her boyfriend and later charged with manslaughter by presiding judge Lord Hoffmann (5). The judgment passed by Lord Hoffmann compelled the jury to decide whether an averagely reasonable person with the same characteristics as the accused is eligible for the defence of provocation. Norrie still points out that in this case the distinction between the morally acceptable and the unacceptable attributes is not stated. In addition, in Morgan Smith’s case, Lord Hoffmann states that characteristics like jealousy and a generalized bad temper should not be considered when making the ruling on such a case. Lord Hoffmann said that the jury should be in a position to set up the moral standards to be used as reference in cases of that nature. In this case, juries were encouraged to come up with parameters for establishing reasonableness of the accused’s action. This should not exceptionally account for the person sharing similar characteristics but also consider the person who has used the same course of action as the accused. The jury should also apply the norms in behaviour recognized by the community in assessing the case. This is necessary because it finally draws the line between the morally acceptable characteristics and those that are not acceptable. Norrie introduces the argument of an abused woman who opts to kill her husband. The woman can base her defences on the fear trigger add the loss of self-control because of the fear of violence. The defence can also remain based on the anger trigger by laying down how domestic wrangles and violence can result into loss of control and consequently anger. The Law Commission formulated the fear trigger to provide guidance when presiding over cases in which the aspect of self-defence cannot apply. Under the law of self-defence, an abused woman who kills her spouse out of the fear trigger would not be seen to have acted in self-defence. This is because the law would view her action as inappropriate. It would also be difficult for her to prove that she acted out of fear of violence since the previous law does not have provisions for the fear trigger. Under the new law, the woman could use an alternative defence stating that she acted out of the fear of violence that has its provisions under the fear trigger aspect of the law11. The abused woman could also apply the anger trigger in her defence process. The old law does not provide for the anger trigger since its focus is not that provocation may have resulted from the woman’s vulnerability to anger, it focuses on her responsibility as a spouse. In this case, the violence she experiences would lead to her helplessness and this would necessitate the application of the diminished responsibility defence. Norrie argues that provocation could still be a factor in her case. The reason he gives is that the continuous abuse may not necessarily cause the provocation but the intensity or grossness of the abuse does. Under the new law, the grossness of the violence can be classified as being able to justifiably initiate the sense of being seriously wronged which affects the woman’s self-restraint and she might therefore act out of the anger trigger. According to Norrie’s argument, this is a credible argument because under the old law the woman would be required to go through a medico-legal process to medically account for the reasonableness if her action. The medical process would classify the case under the diminished responsibility defence and not provocation. Norrie adds that the new law provides a platform for the defence to base the case on the fact that the violence triggered anger thus justifying the course of action taken by the woman. The loss of control is also an area of concern for Norrie. Here, the woman’s action would be judged based on the aspect of premeditation with the exclusion of other factors like Honour Killing that may base the case on a revenge motive12. The Law Commission’s proposals led to the establishment of Section 54, subsection 4 of the act that provides for the consideration of other factors like gross emotional disturbance because of the provocation. Foremost legal decision for proof is that the defendant acted out of a justifiable sense of the serious wrong done to him or her in response to gross or intensive provocation. The reason Norrie gives here is the fact that honour killing cannot be seen as having been provoked by the perception of being seriously wronged. Conclusion (A General View of the Persuasiveness of Norrie’s Argument) It is clear that Norrie’s critical evaluation of the defence is persuasively argued. This is because in his analysis, Norrie makes relevant comparisons between the old and the new law. He clearly outlines the provisions and advantages that the new law has over the old law. In his case comment, Norrie refers to previous but relevant cases that are related to the points he is trying to communicate. The references give a strong basis too his arguments since he is referring to real life occurrences. The referencing makes his arguments and recommendations practically viable. References Alan Norrie, ‘The Coronersand Justice Act 2009-Partial Defences to Murder(1) Loss of Control’ [2010] Amanda Clough, ‘Loss of Self-control as a Defence: The Key to Replacing Provocation’ [2010] Andrew Ashworth and Jeremy Horder. Principles of Criminal Law. (first published 2003,Oxford University Press 2013) 252 Arlie Loughnan. Manifest Madness: Mental Incapacity in the Criminal Law (first published 2012, Oxford University Press) 256 Chris Morgan, ‘Loss of Control: Bacck to the Good Old Days’ [2008] Davis Ormerod, John Cyril Smith and Brian Hogan. Smith and Hogans Criminal Law (first published 2002, Oxford University Press, 2011) 508 De, Than C, and Russell Heaton. Criminal Law(First published 2004, Oxford University Press, 2013) 220 Jonathan Herring. Criminal Law: Text, Cases, and Materials (First published 2008, Oxford University Press, 2012.) 254 Kate Fitz-Gibbon, ‘Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control’ (2013) 40(2) EBSCOHOST< http://eds.b.ebscohost.com/ehost/pdfviewer/pdfviewer?sid=06655f62-cdca-4a58-afdd-6cc1808c3baa%40sessionmgr114&vid=1&hid=111> accessed 14 May 2015 Nicola Monaghan, Criminal Law directions (first published 2010, Oxford University press, 2014) 106. Rebecca Huxley-Binns. Criminal Law: Law Revision and Study Guide (Oxford university Press, 2014) 95 Todd Ruger, ‘Did Killer Plan Murder or was She Insane?’ (2011) HERALDTRIBUNE < http://www.heraldtribune.com/article/20110621/ARTICLE/110629908?tc=ar > accessed 14 May 2015 Read More