criminal-law england-and-wales
&quot;Due to my past this remark was far more insulting than [...] for other people&quot; v. &quot;Because I was abused as a child I have lower levels of restraint&quot;
<ol>
<li><p>Can someone please simplify and teach how to distinguish arguments 1 v. 2 at the bottom? They deal with s 54(3) below.</p>
</li>
<li><p>They look the same to me because both arguments adduce D's past abuse as a child, to legitimize why ‘a useless whore’ made her kill.</p>
</li>
<li><p>In other words, doesn't argument 1's &quot;this remark was far more insulting than it might be for other
people&quot; in argument 1 = argument 2's &quot;I have lower levels of restraint than other people&quot;?</p>
</li>
</ol>
<p><a href="https://www.amazon.co.uk/Criminal-Law-Concentrate-Revision-Study-dp-0198854986/dp/0198854986/ref=dp_ob_title_bk" rel="nofollow noreferrer"><em>Concentrate Criminal Law</em> (2020 7 edn)</a>. p 87</p>
<blockquote>
<h2>Loss of control</h2>
</blockquote>
<blockquote>
<p>This partial defence replaced that of provocation. <a href="https://www.legislation.gov.uk/ukpga/2009/25/section/54" rel="nofollow noreferrer">Section 54</a> of the [Coroners and Justice Act] 2009, provides:</p>
</blockquote>
<blockquote>
<blockquote>
<p>(1) Where a person (‘D’) kills or is a party to the killing of another (‘V’), D is not to be convicted of
murder [but of manslaughter] if—<br />
a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of
self-control,<br />
b) the loss of self-control had a qualifying trigger, and<br />
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.<br />
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control
was sudden.<br />
(3) In subsection (1)(c) the reference to ‘the circumstances of D’ is a reference to all of D’s circumstances
other than those whose only relevance to D’s conduct is that they bear on D’s
general capacity for tolerance or self-restraint.</p>
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</blockquote>
<p>p 89.</p>
<blockquote>
<h2>The objective test</h2>
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<blockquote>
<p>Even if the jury is persuaded that D lost their self-control as a result of a qualifying trigger,
it must still be persuaded that an ordinary person of D’s age and sex, with a normal degree
of tolerance and self-restraint, would have killed as the defendant did. The jury can take
into account the ‘circumstances’ D was in. So it can take into account that D was, for example,
the victim of domestic abuse or their mental health condition, in deciding how serious
the qualifying trigger was and how they might be expected to respond (<em>Rejmanski</em> [2017]).
However, it seems that the circumstances cannot affect the degree of tolerance and self-restraint
expected. The voluntary consumption of alcohol is not a factor that can be taken
into account, <em>Asmelash</em> [2013].<br />
      Note the jury should consider whether or not the ordinary person would have acted
as the defendant did. This means the jury can consider the method of killing used. In</p>
</blockquote>
<p>p 90.</p>
<blockquote>
<p><em>Goodwin</em> [2018] the court accepted that an ordinary person in the defendant’s position might
have killed the victim, but would not have subjected the victim to a five-minute assault of
repeated beatings.</p>
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<blockquote>
<p>Consider this example: D has been abused as a child and V describes her as ‘a useless whore’. The
law allows D to argue: <strong>[Argument 1.]</strong> ‘Due to my past this remark was far more insulting than it might be for other
people and so it was understandable I responded by killing.’ But D cannot say <strong>[Argument 2.]</strong> ‘Because I was abused
as a child I have lower levels of restraint than other people.’<br />
       Also, do you agree that age and sex should be taken into consideration when assessing loss of
self-control? Why?</p>
</blockquote>

<p>Arguments 1 and 2 are not equivalent.</p>
<p>Argument 1 is premised on a particular <em>qualifying trigger</em> that happens in the moment (namely, the insulting remark) whereas argument 2 is premised on the <em>general capacity for self-restraint</em> that only D --unlike the average person-- possesses. <em>Qualifying trigger</em> means a condition that develops shortly (even if not immediately) before the crime, which ought not to be confused with the criminal's [habitual] <em>propensity</em> to commit a crime.</p>
<p>Section 54(1)(b) allows a qualifying trigger to result in leniency, and 54(3) rules out D's personal attributes/history as a factor for leniency. More precisely, 54(3) constrains the meaning of 54(1)(c).</p>
