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.

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For more information on:

  • The defence of Loss of Control
  • Loss of self control
  • What is meant by loss of self control?
  • Qualifying trigger
  • What is meant by a qualifying trigger?
  • Standard of Proof
  • Beyond a reasonable doubt
  • What is the case if there is more than one party to the killing?