Define and explain the defence of loss of control section 54 and 55 of the coroners and justice act 2009.
The defence of loss of control replaces the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009.
Grade: A-C | £0.00.
The defence of loss of control replaces the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009. Provocation had operated as a special defence or partial defence to a charge of murder and had the effect of reducing the murder charge to one of manslaughter under Section 3 of the Homicide Act 1957. The new partial defence of loss of control is provided by Sections 54 and 55 of the 2009 Act. The defence can only therefore be raised as a defence to a murder charge. Even if successful there will still be a conviction for manslaughter and not murder. If the defence is not successful there will be a conviction for murder.
It is now thought that the effect is that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that a reasonable person would have reacted as the defendant did. This contrasts with the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances. In R v Clinton 2012 the trial judge held that the defence of loss of control was not available to the defendant because the words relating to infidelity should be disregarded as a qualifying trigger. On appeal the Court of Appeal decided that where infidelity was a factor this could influence other qualifying triggers and a retrial was ordered.
The nature of the defence is that there must be a loss of control (Section 54 (1) and there needs to be a qualifying trigger (Section 54 (1) (b). Section 55 later helps to define what amounts to a qualifying trigger but Section 54 (2) deals with concerns about 'slow burn' type situations by providing that loss of control need not be sudden. The loss of control is a matter of fact for the jury to determine and whilst it need not be sudden, time is a factor and any lapse of time between any incident and the killing is material. It does not necessarily follow that the old case law under the law of provocation is no longer relevant and time will tell how helpful the former cases will be. We also know from the 2009 Act that the defence will fail if it can be shown that the defendant acted out of revenge (Section 54 (4).
Section 54 (1) (c) deals specifically with the individual's circumstances by setting the bar in terms of reasonableness. Would a person with certain characteristics such as the same sex, age and with an ordinary level of tolerance and self-restraint as the defendant have acted in the same or similar way to the defendant.
This area will no doubt be the subject of judicial consideration. In the meantime the fact that the defendant was said to be unwell, sleeping badly, tired, depressed and “unable to think straight” was found insufficient for loss of self-control ( R v Jewell (2014)).
In R v Workman (2014) The defendant's estranged wife was stabbed during a quarrel and whilst there was evidence that the victim charged at the defendant there was no evidence that the defendant had lost control. A similar finding of no loss of control was found in R v Barnsdale-Quean (2014).
Section 55 requires one or both of two qualifying triggers to exist which are accountable for the loss of control. Under Section 55 (3) and (4) the qualifying triggers are fear of serious violence which need not be from the victim, and of a thing or things done or said (or both) in circumstances of an extremely grave character and a justifiable sense of being seriously wronged. Whether a defendant’s sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient evidence for the defence to be left to the jury).
In R v Asmelash (2013) what amounted to a qualifying trigger was tested. In that case the defendant had murdered the victim when drunk. The defence failed, whilst intoxication did not rule out the partial defence, it did not meet the reasonableness test as envisaged by Section 54 C) (1). We are further helped by the case of R v Dawes (2013) where the defendant entered his estranged wife's house and found her asleep with a third party. The defendant set about the third party hitting him with a bottle. The third party managed to get the bottle away and attacked the defendant. The defence of loss of control was not put to the jury and there was an appeal. On appeal there was insufficient evidence that it was Dawes' purpose to provide him with an excuse or opportunity to use violence by acting in the way he initiated the attack but the Court of Appeal held the trial judge was correct for not leaving the loss of control defence to the jury as there was insufficient evidence that he had lost his control.
Section 54 (1)(c) contains what we understand to be 'a normal person test' that is to say an objective element in that a person of D's sex and age with a normal degree of tolerance and self restraint and in the circumstances of D might have reacted in the same or in a similar way to D's. However some aspects of the partial defence are subjective, for example the jury must must be satisfied that the defendant lost control as a result of one of the qualifying triggers, so it is necessary to examine the defendant's state of mind. Having said that under Section 55 (3) and (4) the qualifying triggers are fear of serious violence and need not be from the victim, and of a thing or things done or said (or both) in circumstances of an extremely grave character and a justifiable sense of being seriously wronged and Lord Judge in Clinton (2012) clearly acknowledged that these circumstances spoken of in section 55 needed objective evaluation. See also Zebedee (2012) where the Court of Appeal disallowed an appeal against a conviction for murder on the basis that the more strenuous provisions which had raised the bar were not met.
As regards the impact of the defence of loss of control there are a number of areas for comment.
The former law on provocation became undermined by its lack of scope to deal with societies concerns about its apparent bias towards men. This may have come about as a result of domestic abuse cases where female partners had been subjected to long term physical and mental abuse but there seemed to be a problem over the 'slow burn' effect. The old law did, after all, require a sudden loss of control. This aspect was probably best highlighted in the case of Thornton (No 1) (1992) where the defendant had been provoked by her husband and then stabbed him but only after she had left the room to go into the kitchen to find a knife and sharpen it before she killed him. Similarly in Ahluwalia (1992) the defendant in that case had been provoked by her husband and then killed her husband by pouring petrol over him and lighting it when he was asleep and she was convicted of murder.
Both cases raised issues as there was no sudden loss of control. Both convictions were later quashed as there was evidence of diminished responsibility. Would the case be dealt with differently today? The new law does not require any 'sudden' loss of control so this aspect is different but the law still requires a loss of control so as both cases showed no loss of control, sudden or otherwise it would seem that both cases would still fail.
It could be argued that any objectivity test under the former law appeared to be inconsistent in interpretation and application. The former law was thought to be gender biased. More in favour of defendants who had lost their temper and killed their victim and who were, on the whole, men and less biased towards those who killed as a result of being afraid of serious violence and who were, on the whole, women in an abusive and violent relationship. These issues may have led to injustice in some cases.
The 2009 Act seems to have deliberately tried to overcome this by prescribing the normal test and setting this in the context of a real loss of control and the new qualifying triggers which must amount to a grave wrong. In so far as these later requirements have been drafted and set out into the 2009 Act it must be assumed that it is trying to give effect to Parliament's intentions and in turn this is reflecting society's expectations and attitudes towards domestic violence. It remains to be seen whether the new law will suffer the fate of the old law by slipping into a confusion between case law and statute. Either way the Law Commission's original proposal to do away with a requirement for loss of control where women kill abusive partners would have removed the difficulty from the defence, at least in theory, as there may have been problems with setting the bar in terms of levels of abuse or where there was evidence of revenge.
In reality the new law, including the attempts to refine it, are complex and it is likely to be the case that this special defence as it now stands will need to be tested in the courts before there is any degree of confidence about how to predict the courts interpretation of the statutory requirements. In this regard we have already been assisted by such cases as Clinton, Dawes, Jewell and Zebedee.
The new law includes a fear of violence which seems a matter of common sense but at present it is still rather early to evaluate how this will provision will operate and in practice it may be difficult to determine responsibility on the evidence available.
There is one area where the new law has narrowed and that is sexual infidelity which has been excluded. This could be seen as a major shift in ground and argued that it may reflect modern society's sense of realism. However sexual infidelity should not be ruled out entirely as Lord Judge specifically made clear when allowing an appeal that infidelity could be a relevant factor, along with other factors, in the context of the qualifying triggers (in Clinton 2012). This seems to be inconsistent with the wording used in the Act of 2009. Furthermore it seems to go against earlier intentions expressed at the consultation stage which specifically raised the point that it was considered unacceptable to allow the defendant to blame the victim for bringing things on themselves through infidelity. It should also be remembered that the defence of provocation, although it appeared in a modern form in the Homicide Act 1957, had developed over a very long period of time before that. It may be that this particular area of the law will be further tested in the future.
We have already spoken about the confusion under the old law and one area where this was perhaps more noticeable was in the area of what amounted to provocation and the nature of it and the context in which it may have taken place. This has been addressed as the defence is now more tightly controlled. This is made clear under the Act of 2009 when it deals with things said or done, now they must must be of an extremely grave character. From the prosecutions point of view they would say that this is only right as society places a high value on human life and the defence should not appear easy to make out. A negative implication might be that it appears to deny the defendant the ability to raise a range of matters which may appear minor in nature but which have been made by the person killed over a period of time and in a calculating and deliberate way to cause harm to the defendant.
In conclusion whilst it seems as though the new law is to be welcomed for addressing concerns apparent under the old law, there will be the need for cases to test the defence in certain areas so that a better understanding and degree of certainty arises for the future.
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Coroners and Justice Act 2009 - Legislation.gov.uk
R v Clinton - Bailii
R v Jewell  EWCA Crim 414 (19 February 2014)Bailii
Workman v R.  EWCA Crim 575 (28 March 2014)Bailii
Love you to death: the British women dying at the hands of their partners
Asmelash v R  EWCA Crim 157 (22 February 2013)Bailii
Dawes & Ors v R.  EWCA Crim 322 (26 March 2013)Bailii
R. v Kiranjit Ahluwalia  EWCA Crim 1 (31 July 1992) - Bailii
Battered women who kill to be main beneficiaries as homicide law changes
Partial defences to murder: loss of control and ... - Justice.gov.uk
Notes: Loss of Control notesLoss of Control ActivitiesCriticisms of Loss of Control
Section 54 of the Coroners and Justice Act 2009
A partial defence to murder which if successful means murder is reduced to a verdict of manslaughter. The defence is raised by the D and then it is upto to the P to disprove beyond reasonable doubt. The defence is based on the fact that exceptionally human beings can lose self-control and kill either because they are very frightened or very angry.
Definition: Where a person ("D") kills/is a party to the killing of another ("V"), D is not to be convicted of murder if:
- D’s acts/omissions resulted from D's loss of self-control;
- The loss of self-control had a qualifying trigger, and
- A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in a similar way to D.
The trigger situations (accepted reasons for losing self control) are
- Where the defendant fears serious violence;
- When certain things have been said or done which amount to circumstances of an extremely grave character, and cause the defendant to have a justifiable sense of being seriously wronged (anger);
- When a combination of the first two situations applies.
D lost self control and killed
R v Richens 1993:
At the age of 17, the appellant killed a man who had raped his girlfriend. The deceased had taunted him about the rape saying that his girlfriend wanted to have sexual intercourse and enjoyed it. At which point the appellant stabbed him. At his trial the defendant raised the defence of provocation. The trial judge directed the jury on loss of control as follows:
"As to the first question, whether the defendant lost his self-control, what you have to look at is whether there was a complete loss of control. The law obviously does not excuse someone who may kill someone because he has lost his temper. All of us lose our tempers, I suspect, quite frequently. It is not dealing with that sort of loss of control at all. It is dealing with a complete loss of control, to the extent where you really do not know what you are doing."
The jury convicted him of murder and the defendant appealed on the basis that the jury should consider whether he lost control, not whether they would lose control.
Held: This is a subjective test based on whether D lost control not whether he should have lost control.
D fears serious violence
Violence must be feared from the V, no one else.
R v Pearson: Violence aimed at another person can also be feared by the D, for example in Pearson D feared violence by his father (V) against his brother.
Fear has to be genuine but doesn’t have to be reasonable; it’s a subjective test.
R v Martin: excessive force used in self-defence may be successful here. Where Martin shot and killed one of two burglars as he lie in wait for the intruders. His fear was clearly genuine as the burglaries had happened before, but as the burglars were leaving the property and not attacking him clearly the fear might be classed as unreasonable. However, this doesn’t matter.
R v Ahluwalia: Where the D anticipates an attack from a husband (domestic violence) then this would be sufficient for fear. Here the husband of A had threatened to beat her up in the morning after which he went to bed very drunk. Again the violence was feared even though we may think it unreasonable as A's fear was of future violence as her husband had gone to bed. (Important: see below about fear of future violence).
Watch the film about Ahluwalia's story. Click Here.
Watch this video about the problems of domestic abuce:
R v Ibrams & Gregory 1982: Where D is being bullied and terrorised then this could also be sufficient for fear. Watch out for any planning (see below and considered desire for revenge) as may not be loss of control.
The two appellants had been harassed and terrorised by John Monk. Ibram's girlfriend, Andronik, left him to start a relationship with Monk. However, Monk was extremely violent towards her leading her to flee the country. She returned to the UK and resumed the relationship with Ibrams. Monk was serving a sentence in Borstal. However, on his release, Monk started visiting the couple using violence and making threats and forcing Andronik to sleep with him. The police had been informed of the events but did not take any action. On one of his visits Gregory, a friend of the couple, witnessed the violence. They hatched a plan whereby; Andronik would invite Monk round, get him drunk and entice him into bed. Ibrams and Gregory would then burst in and beat him up. In fact the two appellants went further than planned and killed Monk. They stated that once they started beating him they lost their control. The trial judge did not allow the defence of provocation to be put before the jury as the planning indicated that there was no sudden and temporary loss of self-control. The defendants appealed and their murder charges reduced to manslaughter.
Case related to new defence: It is likely the D’s would be allowed the defence as they didn’t want revenge but to release Ibram’s girlfriend from systematic abuse and as the police had not taken their requests for help seriously this may help satisfy the tests of the defence. Clearly there was planning for the attack, but not for the killing. See below though for the issues over considered desire for revenge.
Problems with fear trigger:
Neither of the following phrases are defined in the Act so we have to rely on old cases to help interpret the words.
Future fear of violence: The act makes it clear that if the D fears future violence then the trigger cannot be used. This may mean Ahluwalia may not be successful with the defence.
Considered desire for revenge: The act states that where the D has killed because they had a chance to plan the killing (considered) or killed to gain revenge V then the trigger cannot be used.
This means a case like Ibrams may not be successful with the defence. However, if the phrase is read as requiring both planning and revenge to be evidenced before the defence is excluded then Ibrams may be able to argue that even though they did plan the initial attack it wasn’t for revenge. This is because they were only trying to scare the V off and were desperate as the police were not willing to take Monks violent actions seriously.
Things said or done or both (the anger trigger)
Words/deeds need to be of an extremely grave character and cause D to have a justifiable sense of being wronged – an objective test. Neither phrases are defined in the Act so we have to rely on old cases to interpret their meaning.
DPP v Camplin: Where D is raped (done) and then laughed at (said/done) clearly hitting the rapist/V with a heavy object satisfies both objective elements. Clearly a rape is an extremely grave (serious) crime which was committed against Camplin as was the taunting after the rape so the reasonable man would clealry feel a justifiable sense of being wronged sufficient to become so angry as to lose control and kill.
R v Doughty: A very young baby crying would clearly not satisfy things said that were extremely grave and gave D a justifiable sense of being wrong. In this case under the old law this was allowed as a defence but with the changes to this trigger Doughty would no longer be allowed the defence.
Task: Listen to the radio interview below and complete the worksheet as you listen.
For the anger trigger the Act makes it clear that a D cannot use this trigger if their argument is that "sexual infidelity" caused the anger and the killing. Sexual infidelity is not defined in the Act so the recent case below helps us understand how this exclusion works in practice.
R v Clinton 2012: A justification based on things said/done that are linked to sexual infidelity should not be allowed as evidence of this trigger if this is the only reason for the killing. However, where the sexual infidelity was important to show the jury the whole context of the killing, so they could decide if it was extremely grave in nature and justifiable, then sexual infidelity should be allowed as evidence.
The appellant was the husband of the victim. The couple had lived together for 16 years and had children of school age. Two weeks before the victim was killed the victim had left him. The appellant had a history of depression. According to the appellant’s testimony on the night of the killing the victim had returned to the family home.
The appellant had previously viewed the victim’s Facebook page and had “looked at some sexual images which confirmed that Mrs Clinton had been unfaithful to him”. When he showed her the Facebook page on his laptop it was claimed that she “became very spiteful and said ‘it should have been like that every day of the week’ and that she had had sex with five different men. She gave details about the sexual activity saying that they had come inside her. The appellant said that this was deeply hurtful.” Soon after, it is alleged, she found a website on the appellant’s laptop about suicide, “he heard her snigger … and [say] ‘you haven’t got the fucking bollocks’”. The appellant describes “the walls and the ceiling just [seeming] to close in. She was talking but he could not hear what she was saying. He could hear noise, like the distant sea. He wanted everything stop. He wanted everything to slow down.”
The appellant then beat the victim around the head with a wooden baton, strangled her with a belt and tied a piece of rope around her neck. She died from the head injury and asphyxia. After he killed her he removed most of her clothes, put her body in a number of different positions, took photos of it and then sent text messages to the man with whom she was having a relationship. The appellant was found by police in the loft with a noose around his neck.
Held: Where the only trigger of the anger was seeing the sexual infidelity take place this could not be allowed as a loss of control. However where the D was not angered by the actual sexual infidelity but the arguments surrounding the alleged sexual infidelity the jury were entitled to consider this evidence and it therefore wasn’t excluded by the Act.
In English, if you see someone at it with your wife and kill, this will definitely be excluded as evidence of the anger trigger. If you are just told by your wife I have had an affair and you kill this is excluded from the anger trigger. In other words both are murder.
However, if you just find out about the sex afterwards, argue about it and then kill due to being taunted and goaded about the affair, this can be allowed as evidence of the anger trigger.
Delayed reaction between the trigger and the actual loss of self-control
The more delay between the trigger and the killing the more likely the jury will find no loss of control on behalf of the D
R v Thornton 1996:
Facts: Here a battered wife, threatened by her husband, calmly went into the kitchen, got a knife and stabbed him to death. Even though there was a delay in this situation it was still seen as a loss of self control, the threat was sufficient to cause the trigger and loss of control continued until the husband died. The words were the tipping point, the “straw that broke the camel’s back”.
Held: To establish loss of control, there must be a 'sudden and temporary loss of self-control' (Duffy (1949) CA). In cases involving a history of domestic violence, 'the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise'.
A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in a similar way to D
Age & sex
Theses subjective characteristics can be taken into account (placed in statute based on the case of Camplin). In Camplin, therefore, it would be a young male boy the jury must consider.
Normal tolerance & Self Restraint
The phrases are not defined in the Act so we must look at case law to establish their definition.
D must be judged objectively when considering the level of tolerance and self-restraint he should have been capable in the situation. Characteristics such as depression, alcoholism and other conditions cannot be considered when deciding if the jury may have reacted in the same way.
AG for Jersey v Holley:
Facts: The defendant had a stormy relationship with the deceased. They were both alcoholics and he had a history of violence towards her for which he had spent time in prison. On his release from prison she indicated that she did not want to continue the relationship. However, they continued to live together having constant rows. On the day in question they had both been to the pub in the afternoon. He returned early because of an argument. She returned in the evening and announced that she had had sex with another man. He hacked her to death with an axe. At his trial he raised the defence of provocation. He wished to rely on his alcoholism, depression and other personality traits. The jury convicted him of murder. The defendant appealed to the Court of Appeal who quashed the conviction and ordered a retrial. He was again convicted at the retrial and again appealed. His conviction was again quashed and a manslaughter conviction was substituted.
Held: 6:3 Decision (Lords Carswell, Bingham and Hoffman dissenting)
The appeal was allowed. The law in Jersey and England & Wales is the same on this issue. Allowing mental characteristics to be attributed to the reasonable man in assessing the standard of normal tolerance and self restraint expected of the defendant is no longer good law. The phrases appear to be pure objective tests.
Example application with Camplin
So now the jury are looking at a young boy who reacted with the normal tolerance and self-restraint of a reasonable young boy...
In the same circumstances of D
Again the phrase "circumstances" is not defined in the Act so we have to look to case law to help us.
R v Morhall:
Facts: The appellant stabbed a man seven times after he taunted him about his addiction to glue sniffing. The question for the court was whether the defendant who was precluded from saying that his addiction was a characteristic could be taken into account when considering the objective test, because such a characteristic was inconsistent with the concept of the reasonable man.
Held: Circumstances is a subjective tests which means the jury can take into account the things said or done to cause the D to become angry or fearful and kill.
In this case if the D killed simply becuase they were a glue sniffer, the glue sniffing could not be taken into account as it is the person on normal tolerance and self restraint, the reasonable man does not sniff glue.
However, circumstances means that if the D is taunted or gets in an argument about his glue sniffing this becomes the "circumstances" of the thing said, done to make D angry or fearful and can be taken into account.
The House drew a distinction between one who is taunted about an addiction who is provoked into losing their self control and one who, because of their intoxicated state, more readily loses their self control. The intoxicated state would not be taken into account but th taunting about the addiction would be in terms of the circumstances.
Example application with Camplin
So now the jury are looking at a young boy who reacted with the normal tolerance and self restraint of a reasonable young boy who has been raped (circumstances of things done) and then taunted about the rape (circumstances of things said)....
R v Hill:
Facts: In 1993 the appellant had been out drinking with Ricky Hayman, an occasional drinking companion who as known by the appellant, was homosexual. He went back to his flat and fell asleep in the chair. He was awoken by Hayman unzipping his trousers. The appellant struck him in the face and claimed Hayman struck his head on the wooden arm of the chair. Hayman died. Medical evidence was that cause of death was by strangulation, although the appellant denied strangling him. At trial the defendant claimed accident and did not advance provocation as a defence. The jury convicted of murder. The appellant applied to the Criminal Cases Review Commission following the decision in R v Smith (Morgan) allowing mental characteristics to be taken into account by the jury in assessing whether a reasonable man would have been provoked into doing as the defendant did. He wished to introduce fresh evidence relating to sexual abuse during his childhood. Before the appeal was heard the decision in A-G for Jersey v Holley was given.
The conviction was upheld as the evidence was regarded as inadmissible (couldn’t be used in the case for legal reasons).
Held: Had the fresh evidence been admissible it would have enabled the appellant to rely upon it as it related to the circumstances surrounding the killing.
Task: Answer the following:
- What were the circumstances that could have been taken into account by the jury?
- Create a sentence starting with the Age and sex of Hill upto the circumstances that can be taken into account.
A history of violent abuse can also be considered as the circumstances surrounding the killing
R v Humphreys 
The appellant was convicted of murder at the age of 17. She had been brought up by an alcoholic mother and step-father. She left home at the age of sixteen and turned to prostitution. She went to live with an older man who was violent towards her and lived off her earnings. She would often self-harm by cutting her wrists. On the night in question her partner made public jokes about the possibility of a 'gang bang' later. When they returned home the appellant again cut her wrists. Her partner sat beside her and indicated that he wanted to have intercourse with her. When she refused he taunted her about her inability to commit suicide properly. She stabbed him to death.
The Court of Appeal quashed her murder conviction holding that her characteristic of attention seeking was sufficiently permanent and could be taken into account in assessing the circumstances of the killing.
Might have reacted in a similar way
Notice that the jury are not asked to make a judgment that they would have acted in the "same" way, as a reasonable person might not have done so. Rather the jury are asked to decide that the D exceptionally lost their temper and killed because the situation made them very angry or frightened and the jury may have reacted in a "similar way". This is a value judgment by the jury and essentially comes down to what the objective views are of the evidence.
Example application with Camplin
So now the jury are looking at a young boy who reacted with the normal tolerance and self-restraint of a reasonable young boy who has been raped (circumstances of things done) and then taunted about the rape (circumstances of things said) and killed. The question is whether the jury may have reacted in the similar way by becoming very angry, grabbing the nearest heavy object, a pan, and hitting and killing the rapist, the V?
Would you have reacted in a similar way?
If you would Camplin can use the defence and is convicted of manslaughter. If you wouldn’t he can’t use the defence and is guilty of murder.
Applying the Law on Self Control to a real case - Gemma McCluskie- Eastenders Actress
Task: Read, watch and consider the videos and newspaper article regarding the case of Tony McCluskie who is charged with murdering his sister. Then use the evidence you have seen to decide if he can succesfully plead Loss of Control as defence to murder.
Eastenders Clip with Gemma McCluskie (Kerry Skinner)
Article and evidence of case in the Daily Mail
BBC news article.
Crimewatch case - How they caught Tony McCluskie
Task: Create a plan for the defence of Loss of Control looking at the key issues in the scenario below:
- Lost self control and killed
- Anger caused D to lose self control and kill - Consisdered desire for revenge- sexual infidelity
- Fear caused D to lose self control and kill - fear of future violence
- Delay between the trigger and the loss of control
- Taking into account Age & Sex
- Would a Reasonable man with normal tolerance and self restraint
- In the same circumstances as the D acted in a similar way
Harry had recovered from an earlier addiction to drugs, but his brain had suffered some damage and he was subject to very large mood changes.Whilst Harry was out in town one night, he saw his girlfriend, Katie, engaged in a very passionate kiss with Matt, a chef in the restaurant where Katie worked. When he later confronted her with this, she said that, though she liked Matt very much, it was the
first time that they had ever kissed. Harry brooded on this for a few days. He then happened to see a bill for Katie's mobile phone which indicated that she had been sending lots of texts to Matt for some time. Furious, Harry immediately rushed over to the restaurant. After exchanging insults with Matt, he set fire to the kitchen area where Matt was working. The are spread to Matt's clothing and caused such serious burns that he later died.
Discuss the possible liability of Harry for the murder of Matt. (25 marks)
Criticisms of loss of Control
The new defence was based on the recommendations of the Law Commission in 2003 and 2006. The evaluation either says how the new law improves on the old defence of Provocation, as defined in the Homicide Act 1957, or the potential problems with the new defence of loss of control in The Coroners and Justice Act 2009. The issues are as follows:
- More control over when the defence can be raised by the judge
- Whether the new defence if based on a justification or excuse
- The trigger for things said and/or done – the anger trigger
- What does fear of serious violence cover – the fear trigger
- The objective test for the jury
- What is meant by a “considered desire for revenge”
- What is meant by “sexual infidelity”
More control over when the defence can be raised by the judge
The new defence improves the control the trial judge has over whether or not there is sufficient evidence to raise a defence of loss of control. This is because the judge must consider whether the evidence submitted by the D has a chance of succeeding in front of a jury in court. This improved filtering mechanism means spurious cases such as trying to argue that a babies crying should be put to the jury (Doughty) should no longer be left to the jury and result in a much more consistent use of the defence where it is needed.
Whether the new defence is based on a justification or excuse for killing
In 2008 the Ministry of Justice declared that it wanted to both narrow the use of the defence and get rid of the use of the phrase Provocation because it “carries negative connotations” (The Ministry of Justice Consultation Paper, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (July 2008)). The Law Commission agreed with the Ministry of Justice in changing the defence from one that acts as an excuse to killing, where the D effectively argued he was less blameworthy for the killing, to a defence that would work as a justification for the killing, with the D no longer blameworthy for the killing but providing a reasonable explanation for the killing.
The Law Commission suggested a new defence without requiring a loss of control by the D, leaving the D to prove a combination of the triggers as a justification for the killing. However, the government kept the requirement for the need for a loss of self control which appears to imply that the defence is still based on D providing an excuse for the killing. This could impact on cases such as those of domestic violence. For example a jury may have been more likely to allow the defence where the D shows a long period of domestic abuse and kills (such as in Ahluwalia), and argues this as a justification for killing. However, as the D would have to argue they were right to lose self control the jury would find it more difficult to allow this as an excuse for such behaviour, for example because of the delay between the trigger event, the loss of control and the killing.
This clearly leaves the new defence at risk of meeting its intended aims.
The trigger for things said and/or done – the anger trigger
This trigger covers roughly the same terrain as the old provocation defence, which also required things to be said or done. However, the new defence is much narrower than provocation because two new criteria have been added to ensure D’s cannot argue spurious reasons for a loss of control. The combined effect of these conditions means that it would surely be impossible for the new defence to work in a case such as Doughty (1986), where the CA allowed the defence where D had killed his 17-day-old son after the child would not stop crying.
The new defence will only succeed if D can show the things said or done 'constituted circumstances of an extremely grave character' and D had 'a justifiable sense of being seriously wronged'. No further definition of either of these phrases is offered in the Act so this means many inconsistent decisions in cases until appeals interpret the phrases across a range of cases. In particular it is not clear what constitutes circumstances that are of an extremely grave character. For example in Clarke (1991) D was told by his ex-girlfriend, V, that she was pregnant but intended to have an abortion. If the jury decide purely on an objective basis that this isn’t circumstances of an extremely grave character then D would be unsuccessful with the defence. However, if the jury are directed by the judge that they should take a more subjective view of the circumstances of what is said or done it is more likely a D such as Clarke will be successful with the defence. The second element of this trigger is clearly an objective test and will serve to limit the problems with this issue, so for example a slight insult will not be classed as being seriously wronged, but this still clearly causes concerns of consistency across cases.
What does fear of serious violence cover? – the fear trigger
There are two important limitations on this trigger. First, D must fear violence from V as opposed to from some third party. Second, D must fear that the violence will be used against D or ‘another identified person' - a phrase not defined in the Act. Carol Withey, writing in Criminal law and Justice Weekly (3rd April 2010), points out that this particular qualifying trigger was partly intended to assist women who fear violence at the hands of an abusive partner and subsequently kill. The explanatory notes state that it cannot be a fear that the victim will, in the future, use serious violence against people generally. The Law Commission had proposed removing the loss of self-control criterion entirely, in order to provide a defence to women in abusive relationships who killed their partners from 'a combination of anger, fear, frustration and a sense of desperation' (Murder, Manslaughter & Infanticide (2006), using the trigger of fear. However the government concluded that even in abusive relationship cases there was a 'fundamental problem about providing a partial defence in situations where a defendant has killed while basically in full possession of his or her senses even if he or she is frightened, other than in a situation which is complete self-defence. So if the Law Commission’s intended users of this trigger, D’s such as Ahluwalia and Thornton who have suffered years of domestic abuse, cannot use the trigger the question is who will be successful with it?
On the same basis the act appears to blur the boundaries between loss of control and the use of self-defence. In Clegg (1995), it was held that the use of excessive force must result in a conviction for murder; arguments that a conviction for manslaughter should be substituted were rejected. This conflicts with the example given in the Law Commission’s Report (2006) underpinning the introduction of this trigger, which suggests it could be used in cases where the defendant kills a burglar whom he accosts in his home usually involving an excessive use of force. In this situation the Law Commission stated the “loss of control” partial defence is potentially available. If this is the case it is unclear as to what extent juries should consider the extent of force used, whether force was necessary and what happens in situations where a mistake is made as to the use of force, which otherwise would be classified as excessive. For example should the jury ignore or take into account the personal characteristics such as battered Wife Syndrome, as agreed in Ahluwalia and the old law of provocation. Or should such characteristics be ignored when D considered a fear of violence and the mistaken use of force, as is the current law as per the case of Martin and self-defence.
We will have to wait until cases start to set the parameters of this trigger but surely the Act could have taken a much clearer approach in defining its use.
The objective test for the jury
One of the main difficulties with the then defence of provocation was raised by the wording of the section in the Homicide Act which created it: ‘... the provocation was enough to make a reasonable man do as he did ...’
The question that had to be asked, could any man be described as ‘reasonable’ if he reacts to provocation to such an extent that he kills? Furthermore, there was no real consensus on what was meant by a ‘reasonable man’. Certainly judges over the years found it a difficult concept to explain, and had not so far produced a convincing definition.
The judiciary have had problems with the required power of self-control. The different approaches in Luc Thiet Thuan (1996) and in Smith (Morgan) (2000), lead to the Privy Council decision in Holley (2005). This would appear to be adopted, particularly given the cases of James and Karimi (2006). Whilst this whole episode in English law calls into question the doctrine of precedent and the role of the Privy Council, it reflects the problem that lawyers have in dealing with an uncertain and changing law on provocation. Clearly the reasonable man test no longer exists replaced by the normal person test. However, as Loss of control does not define normal degree of tolerance and self restraint except to say they are objective tests it is not clear whether the courts will adopt the approach finally arrived at in James and Karimi, namely that no personal characteristics of the D except age and sex can be considered when saying if the normal person would have acted in a similar, or if there should be a different approach. This may be further clouded by what may or may not constitute the circumstances of the D. The act says that it can be anything as long as it doesn’t impact on tolerance and self control but doesn’t define this. So would a case like Morhall still be able to argue circumstances as taunting over his glue sniffing to be taken into account, probably.
But what about the issue of immaturity as seen in Humphries? Can this be included in the juries thinking about how a normal person would react?
The government explained their view as to what may be excluded from this element of the defence as (Consultation Paper (2008)):
'Factors, such as alcoholism or a mental condition, which affect the defendant's general capacity for self-control, would not be relevant to this partial defence (though they might be to diminished responsibility). Characteristics (eg. intoxication, irritability, excessive jealousy) which do not arise from a medical condition and do not satisfy the test for diminished responsibility should be disregarded altogether.'
What is meant by a “considered desire for revenge”
The Law Commission did not suggest the defence include this exception on the basis that the triggers would allow the jury to decide whether or not the killing was justified. However the government added this exclusion to the use of the defence on the basis that it would stop killings on basis of those that are for example gang related. However the act does not define the phrase, which may cause problems in future cases.
For example in a similar case to Ibrams and Gregory the D’s may be classed as planning a premeditated attack on the V, as there was a week between the decision to attack and the attack itself. However, can we honestly say the motivation for the D’s was revenge as they had been spurned by the police in seeking official help and only intended to break the cycle of violence rather than to get V back for this, especially as the D’s intention was to do GBH rather than kill. Alternatively in Baillie clearly there was an unfettered desire for revenge by the D for the threats made to his son by the drug dealer V. However there was clearly a loss of control as it was only a very short space of time between the initial thing said and the attack on V so clearly there was little considered about the action taken by D.
Would both situations now be excluded by the judge, which clearly could be a potential injustice to D and would probably result in yet more protected appeals on potential misdirections? Clearly the government’s objective may not be achieved in filtering out in appropriate cases using the defence.
What is meant by “sexual infidelity”
The government also insisted on including an exclusion of use of the act for any situation that is based purely on things said/done which amount to “sexual infidelity”. Again the act does not define this phrase but the government did state that (The Ministry of Justice's Consultation Paper (2008)):
“It is quite unacceptable for [D] who has killed an unfaithful partner to seek to blame [V] for what occurred. We want to make it absolutely clear that sexual infidelity on the part of [V] can never justify reducing a murder charge to manslaughter.”
The government were clearly answering the criticism that men who intentionally kill their wives or other female relatives who have allegedly been unfaithful in order to preserve or restore the family ‘honour' will not be able to plead loss of control, and nor will excessively jealous husbands who kill their wives or girlfriends on discovering that they have been having an affair.
This seems to amplify the view of Lord Hoffman in Morgan Smith (2001) that “Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted on the woman herself or on her new lover.
However, with no definition of sexual infidelity clearly there are going to be potential injustices in cases. For example would a case similar to Davies (1975), where the defendant killed his wife after seeing her lover walk towards her place of work, be excluded from running the defence due “sexual infidelity”? Clearly the D didn’t see sexual infidelity. Or what about the case of Mohammed, where D found his daughter in bed with her boyfriend. Would this now constitute sexual infidelity as he saw them in the act?
With such ambivalence in the phrase the risk is the government’s aim of excluding jealous husband’s from using the defence risks being hijacked so the intended target is missed and those who shouldn’t be excluded being caught out.
Overall there are clearly a number of problems to resolve with the new defence but The Coroners and Justice Act 2009 has gone some way to addressing old concerns. ‘Loss of Control’ replaces the concept of ‘provocation’, and thus the ‘reasonable man’ test is largely irrelevant. The definition of the ‘qualifying triggers’ and specification of the ‘characteristics’ in the 2009 Act should make it easier to determine the scope of the partial defence of loss of control.