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?

According to s 55 of CJA 2009, 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:

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

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.

The test of what constitutes circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged is an objective one (R v Hatter (2013)).

Under s 55(6)(a), if the thing done or said constituted sexual infidelity, this will be disregarded in establishing a qualifying trigger for the violence.

Standard of proof

Beyond a reasonable doubt

The standard of proof required for loss of control is beyond a reasonable doubt. That is if 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.