A comparative analysis of English and French defences to demonstrate the limitations of the concept of loss of control

Elliott, C. (2011). A comparative analysis of English and French defences to demonstrate the limitations of the concept of loss of control. In: M. Bohlander (Ed.), Loss of Control and Diminished Responsibility. (pp. 231-246). UK: Ashgate. ISBN 9781409431756

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Abstract

The most important change to the partial defences to murder by the Coroners and Justice Act 2009 was the introduction of fear of serious violence as a possible trigger for the defence. Up until this reform, the emphasis of the defence of provocation had been on anger leading a person to loose their control because of things said or done. Now, the emotion of fear as well as anger can be the basis for the new defence of loss of control. A key reason for introducing this reform was to achieve justice for battered women who killed their abusive partners. This reformed version of the defence has similarities with self-defence and the statutory public defence (together referred to in this article as self-defence). Historically, self-defence has rarely succeeded in removing criminal liability for women who have killed their abusive partners. This article will compare the fear of serious violence branch of the loss of control excuse and self-defence to see where the former will succeed when the latter will not. It is only where loss of control extends beyond the scope of self-defence that the new branch of the law will have any impact, since where there is an option to rely on either defence, an accused would logically favour the complete defence of self-defence over the partial one of loss of control. This comparison will show that not only does the new defence share similar constraints to the old one of self-defence, but it also contains an additional constraint that the accused must have lost their control. The significant overlap of these defences combined with the additional constraint of loss of control renders the new extension relating to a fear of serious violence close to redundant.

The English defences will then be compared with the approach taken in French criminal law. Through this comparison it will be argued that the Government was misguided in clinging onto the concept of loss of control as the basis of a defence for battered women who kill. Instead, a three pronged approach needs to be taken to make sure that justice is done in such cases. Firstly, the law on self-defence should be developed so that it ceases to be a sexist defence that is more likely to succeed for male defendants than female defendants. This could be done by changing the burden of proof where the defendant had been subjected to physical or mental abuse by the victim. Secondly, a new partial defence of self-preservation could be created which would be available where a court concluded that excessive force had been used in an attempt at self-preservation, reducing the defendant’s liability from murder to manslaughter. Finally, the sentencing arrangements could be revisited to make sure that the sentence matches the gravity of the attack in the context of a fatal attack on a victim of domestic abuse.

Item Type: Book Section
Additional Information: Elliot, C. (2011) 'A comparative analysis of English and French defences to demonstrate the limitations of the concept of loss of control' in Bohlander, M. (Ed.), Loss of Control and Diminished Responsibility, UK, Ashgate.
Subjects: K Law > K Law (General)
K Law > KD England and Wales
Divisions: The City Law School > The City Law School - Academic Programmes
URI: http://openaccess.city.ac.uk/id/eprint/6700

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