What is Loss of control?
Loss of control is a Partial defence for murder. If it is successful, defendant will be found guilty of manslaughter instead of murder. This allows the judge discretion in sentencing. Loss of control replaced the former defence of provocation. The law is set out in Section 54 Coroners and justice act 2009. The definition states:
"Where a person kills or is a party to a killing of another defedant is not convicted of murder if...
- D's acts and omissions in doing or being a party to the killing resulted from D's loss of self control.
- The loss of self-control had a qualifying trigger and
- a person of the defendants sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same way"
"Loss of self control"
The first matter to be proved is that D had lost self-control when doing the acts which caused the death. The loss of self control does not have to be sudden, this was also a rule in the former defence "provocation" it led to some defendents not being able to use the defence and example of this is found as in the case of Ahluwalia where the defendant had been physically abused for years which lead to a loss of control.
This case has set precedent and now someone in a situation like this will be able to use the defence of loss of control to lower their conviction to "Murder".
There has to be a qualifying trigger for this defence to become valid. Section 55 sets out the qualifying triggers. These are the qualifying triggers:
- D's fear of serious violence from the victim against themself or somebody else
- A thing or things said or done which constituted circumstances of extremely grave character and caused D to have a justifiable sense of being seriously wronged.
Alternatively, the qualifying trigger can be a combination of these two matters:
Fear of violence - Under the old law of provocation a defendent couldnt use fear of violence as a valid reason to use loss of control as a defence. If we look at the case of Martin who killed one burgular who got into his house, he couldn't use loss of control as a defence.
Things said or done - There are two pieces of criteria to this point, the things said must be of extremely grave character, and caused D to have a justifiable sense of being wronged. It's important there is a second point as it would allow a case like Doughty to be liable for the defence. Zebedee confirms this.
The act specifically states that sexual infidelity cannot be used as a qualifying trigger. The government felt like jealous men could kill their wives and be let off, such male violence isnt accepted in the 21st century.
In Clinton 2012 the Court of Appeal held that the Coroners justice Act 2009 makes it quie clear that sexual infidelity alone cannot amount to a qualifying trigger for the defence of loss of control. However, sexual infidelity did not have to be completely disregarded. It could be considered if it was integral to form other parts of the criteria.
The defence is also not allowed when the defendant acts out in revenge. If D had the time to consider revenge, he did not lose control Ibrams and Gregory backs this point up.
Standard of self-control
The 2009 act requires the defendant's qualifying trigger to be relied on: "a person of D's sex and age with a normal degree of tolerance and self-restraint and in the circumstance s of D, might have reacted in the same way"
Camplin represents this, when the defendant hit an older man over the head with a chipatti pan after being sexual abused and then laughed at.