Jan 25, 2017

Loss of "Self Control"-Defence to Murder?

Loss of “Self Control” Defence to Murder?

The Defence of loss of control defence was introduced by s.54 of the Coroners and Justice Act 2009 and became Law in October 2010. Any alleged offences committed prior to this date are dealt with under the defence of provocation. Loss of control is not a complete defence in that may reduce murder to manslaughter. Loss of Self Control is only available to the offence of murder. The Defence was introduced following concerns in relation to the more known defence of provocation. The defence of provocation was a complex and unsettled area of law and involved several matters going to the Court of Appeal. 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 overly 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 (quite often women experiencing domestic violence). The extent to which the new legislation addresses these issues is becoming increasingly a grey area.  Loss of control is broadly similar to the defence of provocation in the requirements, however, it is more restrictive in applying it to the fact of a case. Interestingly, the Ministry of Justice Impact Analysis of 2009 concluded that the changes would result in a further 10-20 murder as opposed to manslaughter convictions per year at a cost of £4-8M in the prison and court systems.

The Law

  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) which was a seen as a significant barrier to victims of domestic violence. See, R v Ahluwalia [1992] 4 All ER 889, R v Thornton [1996] 1 WLR 1174. 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

  1. Qualifying trigger.

Under the old law of provocation, almost 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. Even a baby crying was accepted as a provocative act (R v Doughty (1986) 83 Cr App R 319). The introduction of qualifying triggers have narrowed the field of the new defence quite significantly.

The “qualifying triggers” can be found in s. 55 Coroners and Justice Act 2009. A qualifying trigger may only relate to:

S.55 (3) Where the Defendant’s loss of self-control was attributable to his/her fear of serious violence from the Victim against the Defendant 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 qualifying triggers

Despite the restrictive wording used to establish a qualifying trigger, S. 55(6) Coroners and Justice Act 2009 provides two further limitations as to what may be considered 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 demonstrates an over-haul from the defence of provocation which was largely raised as a defence to 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 a great deal of criticism as to whether is works in practice.


Incitement seemed to represent a move away from the law of provocation where self–induced provocation could be relied upon:

R v Johnson [1989] 1 WLR 740  

However, in the case of R v Dawes it was held that s.55(6)(b) did not change the position established in R v Johnson

R v Dawes [2013] WLR(D) 130

  1. 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. Reference to sex and age represents the position with regards to provocation established in DPP v Camplin [1978] AC 705.

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 (Court of Appeal), 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 open to defendants.


Associate Solicitor