Loss of Control
This is a partial defence to murder and will reduce the charge down to one of voluntary manslaughter. This gives the judge discretion with the sentencing. The law is set out in s.54 Coroners and Justice Act 2009, which states:
'(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if -
(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 similar way to D.'
The following points are essential:
D must have lost self-control
there must be a qualifying trigger
a person of the same sex and age would have reacted in the same way as D in the same circumstances.
This is a partial defence to murder and will reduce the charge down to one of voluntary manslaughter. This gives the judge discretion with the sentencing. The law is set out in s.54 Coroners and Justice Act 2009, which states:
'(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if -
(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) 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 similar way to D.'
The following points are essential:
D must have lost self-control
there must be a qualifying trigger
a person of the same sex and age would have reacted in the same way as D in the same circumstances.
Loss of self-control
The first issue is whether you can prove that D lost self-control when doing the acts that caused death. It doesn't have to be sudden. This was the rule of provocation and it led to some defendants being unable to use the defence as their loss of control was not sudden. In Ahluwahlia (1992), the defendant had suffered domestic abuse and violence from her husband for years. One night she poured petrol on him and set fire to him. |
The defence of loss of control used to be provocation; you needed to have a sudden loss of your control over your actions. This is no longer the law. There does not have to be a sudden loss of your control.
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She was not allowed to use the defence of provocation because her acts were not sudden. However, she was allowed on appeal for grounds of diminished responsibility. It is likely now that there would be a defence of loss of control since the sudden element has gone.
Qualifying trigger
There needs to be a qualifying trigger of the loss of control. Section 55 of the Act sets outs what the qualifying triggers are which are permitted. These are:
(b) caused D to have a justifiable sense of being seriously wronged.
The qualifying trigger can be a combination of these two things as well.
There needs to be a qualifying trigger of the loss of control. Section 55 of the Act sets outs what the qualifying triggers are which are permitted. These are:
- D's fear of serious violence from V against D or another identified person; or
- a thing or things done or said (or both) which -
(b) caused D to have a justifiable sense of being seriously wronged.
The qualifying trigger can be a combination of these two things as well.
Fear of violence
The old law of provocation did not allow a defence where D lost control through a fear of violence. In Martin (Anthony) (2002) we see this. Two burglars got in to Bleak House, where Tony Martin was living. He shot out with a shotgun and hit one of the burglars, killing them. Previously, Martin had been heard saying that he would kill burglars if they came on to his land again. He was convicted of murder. There was no self defence because there was no danger to him that he responded to. There was no reasonableness about his force used. His conviction was reduced to manslaughter because of grounds of diminished responsibility. There is a chance that Martin could use the defence of loss of control now.
Battered wives, such as Ahluwalia, may also be able to use the this qualifying trigger as they fear violence from their partner. The defendant does not have to fear violence by the victim: fear of violence by another person can also be a qualifying trigger. The other person has to be identified and it cannot be a general fear of violence.
The old law of provocation did not allow a defence where D lost control through a fear of violence. In Martin (Anthony) (2002) we see this. Two burglars got in to Bleak House, where Tony Martin was living. He shot out with a shotgun and hit one of the burglars, killing them. Previously, Martin had been heard saying that he would kill burglars if they came on to his land again. He was convicted of murder. There was no self defence because there was no danger to him that he responded to. There was no reasonableness about his force used. His conviction was reduced to manslaughter because of grounds of diminished responsibility. There is a chance that Martin could use the defence of loss of control now.
Battered wives, such as Ahluwalia, may also be able to use the this qualifying trigger as they fear violence from their partner. The defendant does not have to fear violence by the victim: fear of violence by another person can also be a qualifying trigger. The other person has to be identified and it cannot be a general fear of violence.
Things said or done
There are two important points which have to be shown if the defendant is to rely on the things said or done. That are:
In Doughty (1986), the defendant killed his son aged 19 days. The child would not stop crying and he was convicted, however the Court of Appeal quashed the conviction because the decision of whether the baby's crying was provocation by 'things done.' This defendant is very unlikely to have a defence under loss of control as he would not be able to show 'justifiable sense of being seriously wronged.' In Zebedee (2012) the defendant lost control when he 94 year old dad, who was suffering from Alzheimer's and was doubly incontinent, repeatedly soiled himself. D killed his father and put forward a defence of loss of control. He was convicted of murder and his conviction was later upheld. The courts ruled that in order for things done or things said to be a qualifying trigger under s.55 Coroners and Justice Act 2009, they must constitute circumstances of an extremely grave character and D must have a justifiable sense of being seriously wronged. Neither of these conditions were met in this case.
There are two important points which have to be shown if the defendant is to rely on the things said or done. That are:
- that they were of an 'extremely grave character' and
- that they caused D to have a justifiable sense of being seriously wronged.
In Doughty (1986), the defendant killed his son aged 19 days. The child would not stop crying and he was convicted, however the Court of Appeal quashed the conviction because the decision of whether the baby's crying was provocation by 'things done.' This defendant is very unlikely to have a defence under loss of control as he would not be able to show 'justifiable sense of being seriously wronged.' In Zebedee (2012) the defendant lost control when he 94 year old dad, who was suffering from Alzheimer's and was doubly incontinent, repeatedly soiled himself. D killed his father and put forward a defence of loss of control. He was convicted of murder and his conviction was later upheld. The courts ruled that in order for things done or things said to be a qualifying trigger under s.55 Coroners and Justice Act 2009, they must constitute circumstances of an extremely grave character and D must have a justifiable sense of being seriously wronged. Neither of these conditions were met in this case.
Excluded matters
The Act specifically stateds that sexual infidently cannot ever be a qualifying trigger. Previously, under the old law, sexual infidelity was allowed as one of the reasons for provocation but it is no longer included. The government felt that provocation allowed a defence to jealous men who killed their wives and girlfriends who were having an affair and it was not fair. In Clinton (2012), the Court of Appeal held that the Coroners and Justice Act 2009
The Act specifically stateds that sexual infidently cannot ever be a qualifying trigger. Previously, under the old law, sexual infidelity was allowed as one of the reasons for provocation but it is no longer included. The government felt that provocation allowed a defence to jealous men who killed their wives and girlfriends who were having an affair and it was not fair. In Clinton (2012), the Court of Appeal held that the Coroners and Justice Act 2009