Martha Nussbaum, Upheavals of Thought: The Intelligence of the Emotions (Cambridge: Cambridge University Press 2001), p. 70. PDF The Journal of Criminal Law The Loss of Control The Author(s - CORE The loss of self-control may be due to fear, anger or resentment, but must be present at the time of the killing. D Jeremy, Sentencing Policy or Short-term Expediency? [2010] Crim LR 593. He then reached out and grabbed the piece of wood. If the conduct breaches the law the individual can rightly be held liable and punished. On 4 October 2010 the old common law plea of provocation which, if successful, reduced murder to voluntary manslaughter, was abolished and replaced by the partial defence of loss of control. Joshua Dressler (2002), Why Keep the Provocation Defense?, Minnesota Law Review 86(5): 959-1002 at 974. More fundamentally, Ashworth argued that this is unsatisfactory on the ground that the objective test should exclude attitudes and reactions which are inconsistent with the aims and values which the law seeks to uphold.37 He also demonstrated his desire to be guided by principle when considering the merits of other characteristics such as culture. This, of course, echoes the concern of Lords Hoffmann and Clyde in Smith that the law would be unjustified in expecting a person to conform to a standard of which he is, through no fault on his part, incapable of achieving. Evidence of both loss of self-control and diminished responsibility might arise in the course of any individual case, even though following the Privy Council's decision in Holley, and certainly under the Coroners and Justice Act 2009, the two pleas should now be regarded as mutually exclusive: if pleaded in the same case they ought to be considered in the alternative.93 Where a person was suffering from an abnormality of mental functioning (as defined in section 52 of the Coroners and Justice Act 2009) which caused him to lose his self-control and strike out with fatal violence, then he may plead diminished responsibility, regardless of any provocation to which he may have been subjected. As a consequence of section 3 of the Homicide Act 1957, once there was evidence that the defendant had been provoked to lose self-control the matter then had to be passed to the jury, who would decide whether a reasonable person would have reacted as the defendant had. The latter two issues appear to have been settled under the new law, but it remains to be seen how the courts construe the central concept of loss of self-control. Law Com No 304, n 3 above, paras 5.1546. Response to Consultation CP(R)19/08, n 58 above, para 28. The law, however, assumes that there are degrees of loss of self-control. R Holton and S Shute, Self-Control in the Modern Provocation Defence (2007) 27 OJLS 49. Must there be some form of relationship between the parties and, if so, what? Marcia Baron, Gender Issues in the Criminal Law, in John Deigh and David Dolinko (eds. ), (Oxford: Oxford University Press, 2004), p. 368. [1963]Google Scholar A.C. 220, 231: "Provocation in law consists mainly of three elementsthe act of provocation, the loss of self-control, . Loss of self control is the new special and partial defence to murder, latter to the reform. In 1976, shortly before the House of Lords decision in Camplin, an article by Ashworth was published in the Cambridge Law Journal30 in which he essentially put forward the argument which was used by Lord Diplock. Given the New Labour government's desire to toughen up this part of the law it is not surprising to find that the new plea is littered with objective requirementsapart from the obvious person with a normal degree of tolerance and self-restraint test, those who rely on the fear trigger must fear serious violence, which will surely be construed according to what the court treats as serious; those who rely on the words and/or conduct trigger will only succeed if the court thinks they are of an extremely grave character and that they caused the defendant to have a justifiable sense of being seriously wronged. The Commission did, though, acknowledge that EMED has formed the basis for a provocation defence in at least some American jurisdictions, and cannot therefore be dismissed as unworkable.
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