Raising the Bar: Loss of Control and the Qualifying Triggers
| Author | Tony Storey |
| Published date | 01 February 2013 |
| Date | 01 February 2013 |
| DOI | http://doi.org/10.1350/1740-5580-77.1.17 |
| Subject Matter | Court of Appeal |
be admitted even where it is of minimal relevance to the issues in the
case.
(L. Kelly, J. Temkin and S. Griffiths, Section 41: An Evaluation of New
Legislation Limiting Sexual History Evidence in Rape Trials, Home Office
Online Report 20/06.)
On the facts of the present case, the Court of Appeal makes no
reference to the two-stage test which must be satisfied in accordance
with s. 41 before sexual history evidence will be received. During the
debates on the 1999 Act an amendment was proposed that either
s. 41(2)(a), (3) or (5) applies or s. 41(2)(b) applies and not both. The idea
behind the amendment was that a situation might arise where subs. (3)
or (5) does not apply, but the evidence might still be considered to be
relevant and that refusing to give leave ‘. . . might have the result of
rendering unsafe a conclusion of the jury or (as the case may be) the
court on any relevant issue in the case’. The amendment was rejected
because of the risk of returning to a discretionary position not too
dissimilar to that under s. 2 of the Sexual Offences (Amendment) Act
1976—the very provision s. 41 of the 1999 Act was designed to
replace.
Brian Brewis, Adam Jackson and Michael Stockdale
Raising the Bar: Loss of Control and the Qualifying
Triggers
R v Zebedee (John) [2012] EWCA Crim 1428
Keywords
Murder; Voluntary manslaughter; Loss of control; Qualifying
triggers; Dementia
John Zebedee (Z), 55, was charged with the murder of his 94-year-old
father (H). H suffered from senile dementia and was doubly incontinent;
however, the family was determined that he be cared for at home. H
lived with Z’s sister in Northampton, but Z visited every weekend, and
one week every five weeks, to help out. One night, during one of those
weeks, Z killed H by punching and strangling him. Z did not deny the
killing, but relied, inter alia, on loss of control. Loss of control is set out
in s. 54 of the Coroners and Justice Act 2009. This states that:
(1) Where a person (‘D’) kills or is a party to the killing of another (‘V’),
D is not to be convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing
resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance
and self-restraint and in the circumstances of D, might have
reacted in the same or in a similar way to D.
D’s loss of control must be based on one (or both) of two ‘qualifying
triggers’, which...
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