Loss of Control, Provocation and the Criminal Law

The Homicide Act 1957

Contained within the Homicide Act 1957 are there defences which could be pleaded in relation to a charge of murder. If one of these defences was proven it would have the effect of reducing the crime of murder to that of manslaughter.

These three defences differ from all other defences under the criminal law as they do not apply to all crimes; only murder and that they have the effect of reducing criminal liability rather than absolving the defendant from liability completely.

The three defences contained within the Homicide Act are:

  1. Diminished responsibility

  2. Suicide pact

  3. Provocation

The Coroners and Justice Act 2009

The Coroners and Justice Act received royal assent on the 12 November 2009 and makes significant changes to the above defences. 

Defence of Provocation

In order to successfully prove the defence of provocation under Section 3 of the Homicide Act 1957 the two following common law elements had to be proven:

  1. The factual limb

  2. The evaluative limb

The factual limb

The factual limb was a consideration of whether the defendant was, or may have been, provoked into losing self control. The issue here is a pure question of fact.

The evaluative limb

In relation to the evaluative limb the jury was required to answer the question of whether the provocation was enough to make the reasonable man do as he did.

Accordingly two different tests were developed in relation to the evaluative limb of the defence of provocation. They were as follows:

  • Whether an ordinary person of ordinary powers of self control would have reacted to the provocation in the way in which the defendant did – in this respect no allowance was given to specific characteristics of the defendant which may make him more volatile

  • That the circumstances were such to make the loss of self control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter

The Current Law

The Coroners and Justice Act 2009

According to section 56 of the Coroners and Justice Act the common law defence of provocation is abolished and is to be replaced by Sections 54 and 55 of the Act which create the new defence of loss of control. Accordingly Section 3 of the Homicide Act 1957 ceases to have effect.

Partial defence to murder

An issue that remains the same is that the defence of loss of control is a partial defence to murder in that it has the effect of reducing murder to manslaughter if proven to be in existence.

The defence of Loss of Control

Under Section 54 of the Coroners and Justice Act the defendant will not be convicted or murder and will have their charge reduced to murder if the following elements can be proven:

  • That the defendants acts or omissions in doing or being a party to the killing resulted from the defendants loss of self control

  • That the defendant’s loss of self control had a qualifying trigger

  • That a person of the defendants sex ad age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in the same or in a similar way to the defendant

Loss of self control

What is meant by loss of self control?

A loss of self control will only apply to an act happening in the spur of the moment where there has been a cause which for some reason the defendant has been unable to tolerate which has caused him to take the required action. The Act specifies certain situations which would not fall within the definition of a loss of self control, for example if the defendant acted in a considered manner for revenge.

Qualifying trigger

What is meant by a qualifying trigger?

According to Section 55 of the Coroners and Justice Act a loss of self control is said to have a qualifying trigger if any of the following two events, or a combination of both, occur:   

  1. The defendant’s loss of self control was attributable to the defendant’s fear of serious violence against him or another party

  2. The defendant’s loss of self control was attributable to things done or said which:

    • constituted circumstances of an extremely grave character

    • caused the defendant to have a justifiable sense of feeling wronged

According to the Act when establishing if there was a qualifying trigger the defendant’s fear of serious violence must be disregarded if it was caused by an event with the defendant incited and is simply being used as an excuse for the act.

Similarly a sense of being seriously wronged by a thing done or said will not be justifiable if the defendant incited the thing to be done or said and is simply using it as an excuse to use violence.

If the thing done or said constituted sexual infidelity, this will not be considered in establishing a qualifying trigger for the violence.

Standard of Proof

Beyond a reasonable doubt

As is the case with many areas of the criminal law the standard of proof required for loss of control is beyond a reasonable doubt. That is if there is sufficient evidence is adduced to raise an issue of the defence being satisfied the prosecution must prove beyond a reasonable doubt that the defendant was not suffering from a loss of self control.

What is the case if there is more than one party to the killing?

If there is more than one party to the killing each party’s case will be judged on its own facts. If one of the defendants is able to successfully plead the defence of loss of control being convicted of manslaughter it does not affect the case of the other defendants who can still be charged with murder.