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The Defence of Loss of Control - Voluntary Manslaughter
 
 
 
The loss of control defence was introduced by s.54 of the Coroners and Justice Act 2009 and came into force in October 2010. Killings committed prior to this date continue to be governed by the defence of provocation. The defence of loss of control is a partial defence that may reduce liability for murder to manslaughter. It does not operate to absolve the defendant of liability completely. It is not a general defence and exists only for the offence of murder. The loss of control defence was introduced in response to concerns in relation to the defence of provocation. The defence of provocation proved problematic and was subject to much consideration by the appeal courts. The appeal courts were not always consistent in the interpretation and application of the defence of provocation as set out in s.3 of the Homicide Act 1957. The defence was also considered to have a gender bias in that it was too favourable to those who killed as a result of losing their temper (generally male defendants) but did not provide a tailored response to those who kill out of a fear of serious violence (often women experiencing domestic violence). The extent to which the new legislation addresses these issues is a moot point. The new defence of loss of control is broadly similar to the defence of provocation in the requirements, however, it is far more restrictive in its application. The Ministry of Justice Impact Analysis of 2009 estimated that the changes would result in a further 10-20 murder rather than manslaughter convictions per year at a cost of £4-8M in the prison and court systems.
 
 
 
 
 

S.54 Coroners and Justice Act 2009



S.54(1) A person who kills or was party to a killing may be convicted of manslaughter rather than murder where there exists:



(a) a 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.

 

Burden of proof
 
S.54 (5) - if sufficient evidence is adduced, the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
 
 
 

1. Loss of self-control



There is no requirement that the loss of self-control be sudden (s. 54(2)). This represents a  change from the law of provocation which required the loss of control to be sudden and temporary (R v Duffy [1949] 1 All ER 932 Case summary) which was a seen as a significant barrier to victims of domestic violence. See, R v Ahluwalia [1992] 4 All ER 889 Case summary, R v Thornton [1996] 1 WLR 1174 Case summary. However, in each of those cases there was no loss of control, sudden or otherwise and thus the cases would have the same outcome under the new defence. The Law Commission had recommended that there should be no requirement of loss of control as this was the element of the defence of provocation that operated against women.

 
By virtue of s. 54(4), if D acted in a considered desire for revenge they can not rely on the defence. This upholds the principle seen in:
 
R v Ibrams & Gregory (1982) 74 Cr App R 15 Case summary.
 
 

2. Qualifying trigger

 
Under the old law of provocation virtually any act was capable of being used as evidence of provocation. This was considered problematic in that it was too wide. The provocative action did not have to be deliberate or aimed at the victim: R v Davies [1975] 1 QB 691 Case summary . Even a baby crying was accepted as a provocative act (R v Doughty (1986) 83 Cr App R 319 Case summary). The introduction of qualifying triggers have narrowed the ambit of the new defence quite dramatically.

 

The qualifying triggers are set out in s. 55 Coroners and Justice Act 2009. A qualifying trigger may only relate to:



S.55 (3) Where D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person. or
 
S.55 (4) Where D's loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
 
(b) caused D to have a justifiable sense of being seriously wronged.
 
 
 
Limitations on qualify triggers
 
Despite the restrictive wording used to establish a qulaifying trigger, S. 55(6) Coroners and Justice Act 2009 provides two further limits as to what may be classed as a qualifying trigger:

 

    S.55(6)(a) The fact that a thing done or said constituted sexual infidelity is to be disregarded.
    S.55(6)(b) A person may not raise a qualifying trigger if they incited the thing done or said or the violence.

 

Sexual infidelity
 

The limitation based on sexual infidelity represents a major change from the defence of provocation which was largely seen as an excuse for crimes of passion. This change is based on the view that in a civilised society there can be no excuse for killing due to infidelity. Whilst this sentiment is commendable its inclusion has received widespread criticism as to its workability in practice. This provision has already been subject to interpretation by the Court of Appeal: 

 

R v Clinton [2012] EWCA Crim 2 Case summary
 
Incitement
 
The limitation based on incitement represents a move away from the law of provocation where self–induced provocation could be relied upon:
 
 R v Johnson [1989] 1 WLR 740     Case summary
 
 
3. Degree of tolerance and self-restraint
 
 
S.54(1)(c) requires that a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same  or similar way. This is a question for the jury to decide. It replaces the reasonable man test which existed under the law of provocation which attracted widespread criticism and was subject to much conflicting interpretation in the courts culminating in the landmark case of Attorney General for Jersey v Holley [2005] 3 WLR 29 Case summary. Reference to sex and age represents the position with regards to provocation established in DPP v Camplin [1978] AC 705  Case summary
Problems with the reasonable man test related to the characteristics which could be attributed to the reasonable man. S.54(1)(C) makes explicit reference to just age and sex however, characteristics may be relevant when assessing the circumstances of the defendant although under s.54(3) circumstances which relate to the defendant's general capacity to exercise tolerance and self-restraint are to be disregarded. According to R v Clinton [2012] EWCA Crim 2 Case summary, sexual infidelity may be considered when looking at the circumstances under s.54(1)(c) in an appropriate case.

The defence of provocation required some degree of proportionality test in that the jury were required to assess the gravity of the provocation in deciding if a reasonable man would have done as the defendant did. The new defence of loss of control does not have such a balancing exercise. The gravity of the provocation, or trigger event, is assessed at stage two and must meet the specified thresholds of either fear of serious violence (s.55(3), extremely grave or seriously wronged (s.55(4). There is no requirement that this is weighed against the conduct of the defendant. Also rather than the jury assessing whether the provocation would have made a reasonable man do as the defendant did, the jury are required to consider if a relevant person might have reacted in the same or similar way. The third element of the defence, is thus perhaps more generous to defendants.