The mens rea for murder is established by evidence, as Maria throws the vase at Pauls head with the intention to cause Grievous Bodily Harm GBHtherefore indicates that Maria had intention to harm and possibly Kill John, and therefore would be likely to be charged with Murder. However Maria may be able to plead the partial defence of loss of control, this is a statutory defence and only applies to murder charges.
October 28, by Inherently Human Vincent McAviney Durham Law School, Durham University On the 4th October the law of murder in England and Wales changed dramatically when Provocationwhich had been present in our legal system for centuries, was finally abolished.
Under the previous common law defence of provocation, the defendant was required to have lost their self-control due to things said or done. The universalising of the angry response thus presets the standard as inexorably male.
This is an entirely new basis of a partial defence to murder and allows defendants who are likely to fail in a plea of self-defence because they have acted disproportionately to a threat from the deceased.
This approach is to be supported for it is right that emotions other than anger should allow for mitigation in homicide cases where a concession for human frailty is warranted.
The removal of this requirement is therefore welcome as it does not reflect the experience of battered women, most often physically weaker than their victims who are forced to wait to act.
The problem with this new defence is that merely fearing such violence is not a sufficient trigger.
The fear has to have caused in the defendant a loss of self-control. Clarkson and Keating point out that whilst a few women such as Ahluwalia may have lost their self-control in the past, the vast majority will have only acted rationally but used more force than was strictly necessary in a commotion of events.
Indeed they might even argue she was acting in revenge, something which is banned outright in the Coroners and Justice Act These ways would be less identifiable, would the defendant have to cry, plead and wail for instance to show that they had lost their self-control?
Thus it may not be capable of protecting the women who need it most as the new defence is only open to those who are so fearful of violence that they panic and lose their self-control. Whilst it is clear that this new trigger makes the loss of control defence more limited than the old common law of provocation I would argue that it is still too accommodating.
It must be asked why has the trigger been retained? And why is it still acceptable for the law to provide an excuse for killings carried out primarily by men in anger?
Although it is likely that the jury may consider this a revenge killing, which is prevented by the legislation the second trigger is still fraught with uncertainty because of the lack of clarity in its wording. But ultimately why should killing in anger still be justified in the criminal law if its main aim is to prevent people from killing one another.
This was recognised last year by New Zealand which abolished classic provocation based on anger. Instead of trying to differentiate between acceptable and non-acceptable murders we should simply make a stand and say that it is never an appropriate response to getting angry.
However the fact remains that some women who should fall under this new limb having suffered fear of serious violence will not have lost their self-control leaving them unprotected and likely to fall between the gap in the law with self-defence.Oct 28, · Jeremy Horder has called this “the loss of self-control dilemma” as the concept was limited only to “stereotypically male, violent reactions to provocation” to the exclusion of female reactions such as despair and fear.
The universalising of the angry response thus . Under the subjective limb, the jury would decide whether the defendant actually lost self-control (though not a complete loss of self-control) while common law requires loss of self-control to be sudden, temporary and almost simultaneous to act of provocation but needs not be immediate, though, more particularly, Lord Taylor CJ in Ahluwalia pointed out that the longer the delay, the more difficult the .
Defence of Loss of Control The defence of provocation in murder was replaced by the defence of loss of control, as a consequence of the Coroners and Justice Act , which became effective in the year Called the Coroner and Justice Bill, the proposed law is set to abolish provocation as a partial defence and introduce the ‘loss of control’ law in its lieu, using more stringent and specific language that will hopefully narrow down the application of the law and remove the hindrance to a more just application of the partial defence.
On 4 October 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. Development Of Defense Of Provocation Essay - Development of Defense of Provocation Question: Critically evaluate the development of common law principles applicable to the defence of provocation in criminal law from the decision in Mancini v DPP  AC 1 to Mascantonio v R () CLR