Loss of control, provocation and the criminal law

Provocation was one of three special defences contained within the Homicide Act 1957 (HA 1957) which could be pleaded in relation to a charge of murder.

If one of these defences was proven it had the effect of reducing the crime of murder to that of manslaughter. These three defences differed from all other defences under the criminal law as they did not apply to all crimes; only murder.

The three defences contained within HA were:

  • diminished responsibility;
  • suicide pact;
  • provocation.

Although diminished responsibility and suicide pact remain as special defences under HA 1957, the defence of provocation under this Act was abolished by the introduction of the Coroners and Justice Act (CJA 2009).

Sections 54 and 55 of CJA 2009 create a new defence of loss of control. Like provocation, if loss of control can be proven, it serves as a partial defence to murder, reducing a conviction of murder to manslaughter.

The defence of loss of control

Under s 54 of CJA 2009, someone who kills or was party to a killing may be convicted of manslaughter rather than murder if:

  • the defendant’s acts and omissions in doing or being a party to the killing resulted from their loss of self-control;
  • the loss of self-control had a qualifying trigger; and
  • 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 in a similar way to the defendant.

What is meant by loss of self control?

Unlike the defence of provocation, there is no requirement that the loss of self control be sudden. However, under s 54(4), if the defendant acted out of a desire for revenge, they could not rely on the loss of control defence.

Whether 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 is a question for the jury to decide.

The jury must decide whether a relevant person might have reacted in the same or similar way, rather than whether the provocation would have made a reasonable man do as the defendant did, as was required under the previous law.

What is meant by a qualifying trigger?

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For more information on:

  • Standard of proof
  • Beyond a reasonable doubt
  • What is the case if there is more than one party to the killing?